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Benchguide LPS Proceedings

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					    CALIFORNIA JUDGES BENCHGUIDES
                Benchguide 120




LPS PROCEEDINGS
   [REVISED 2010]
ABOUT CJER
      The California Center for Judicial Education and Research (CJER), as the Education Division of the Administrative Office
of the Courts (AOC), is responsible for developing and maintaining a comprehensive and quality educational program for the
California judicial branch. Formed in 1973 as a joint enterprise of the Judicial Council and the California Judges Association,
CJER supports the Chief Justice, the Judicial Council, and the courts by providing an extensive statewide educational program
for judicial officers and court staff at both the trial and appellate levels. It includes orientation programs for new judicial
officers, court clerks, and administrative officers; continuing education programs for judicial officers, court administrators, and
managers; an annual statewide conference for judicial officers and court administrators; video and audiotapes; and judicial
benchbooks, benchguides, and practice aids.

 CJER GOVERNING COMMITTEE                                         Hon. Elizabeth Allen White
 Hon. Ronald B. Robie, Chair                                        Superior Court of California, County of Los Angeles
   Court of Appeal, Sacramento                                    Hon. Arthur A. Wick
 Hon. Robert L. Dondero, Vice-Chair                                 Superior Court of California, County of Sonoma
   Superior Court of California, County of San Francisco
 Hon. Gail A. Andler                                              Advisory Members
   Superior Court of California, County of Orange                 Hon. Socrates Peter Manoukian
 Mr. Stephen Anthony Bouch                                          Superior Court of California, County of Santa Clara
   Executive Officer                                                California Judges Association
   Superior Court of California, County of Napa                   Mr. William C. Vickrey
 Ms. Tressa S. Kentner                                              Administrative Director
   Executive Officer                                                Administrative Office of the Courts
   Superior Court of California, County of San Bernardino
                                                                  CJER PROJECT STAFF
 Hon. Barbara A. Kronlund
                                                                  Bob Schindewolf
   Superior Court of California, County of San Joaquin
                                                                      Managing Attorney, Publications
 Hon. William A. MacLaughlin
                                                                  Iris Okura
   Superior Court of California, County of Los Angeles
                                                                      Senior Editor
 Mr. Michael A. Tozzi
   Executive Officer
   Superior Court of California, County of Stanislaus
 Hon. Theodore M. Weathers
   Superior Court of California, County of San Diego


 BENCHGUIDE CONSULTANTS
                                                                  Hon. Elaine Streger
 Hon. Kathleen M. Banke
                                                                    Superior Court of California, County of Orange
   Court of Appeal, San Francisco
                                                                  Hon. Carol Yaggy
 Hon. Joyce M. Cram
                                                                    Superior Court of California, County of San Francisco
   Superior Court of California, County of Contra Costa
 Hon. Nancy Case Shaffer
   Superior Court of California, County of Sonoma




                      Editorial comments and inquiries: Bob Schindewolf, Managing Attorney 415–865–7798
                                                     fax 415–865–4335
                                          2010 by Judicial Council of California
              Published March 2010; covers case law through 47 C4th, 179 CA4th, and all legislation to 1/1/2010
                        CALIFORNIA JUDGES BENCHGUIDES
                                        Benchguide 120




            LPS PROCEEDINGS

I. [§120.1] SCOPE OF BENCHGUIDE
II. CHECKLISTS
  A. [§120.2] Checklist: Court-Ordered Evaluation for 72
              Hours (Welf & I C §§5200–5213)
  B. [§120.3] Checklist: Court-Ordered Evaluation for Criminal
              Defendant Afflicted With Chronic Alcoholism or
              Drug Abuse (Welf & I C §§5225–5230)
  C. [§120.4] Checklist: Certification Review Hearing After 14-
              Day Hold Ordered (Welf & I C §5254)
  D. [§120.5] Checklist: Establishment of LPS Conservatorship
              (Welf & I C §5350)
III. APPLICABLE LAW
  A. LPS Act—In General
     1. [§120.6] Purposes
     2. [§120.7] Standards for Appointment of Counsel
     3. [§120.8] Exclusions From Act
     4. [§120.9] The LPS Assignment
  B. [§120.10] Procedural Overview
     1. 72-Hour Hold (Welf & I C §§5150, 5200)
        a. [§120.11] Placing the Hold
        b. [§120.12] After Admission
        c. [§120.13] Liability for Exercise of Authority
        d. [§120.14] Confiscation of Weapons
     2. [§120.15] 14-Day Certification for Intensive Treatment
                   (Welf & I C §5250)
     3. [§120.16] 180-Day Postcertification Hold (Welf & I C
                   §5300)
     4. [§120.17] LPS Conservatorship (Welf & I C §5350)


                                                                 120–1
                 California Judges Benchguide                120–2



C. [§120.18] Definitions
  1. Gravely Disabled
      a. [§120.19] General Definition
      b. [§120.20] Person Found Incompetent Under Pen C
                   §1370
      c. [§120.21] Mentally Retarded Persons
      d. [§120.22] Minors
  2. [§120.23] Evaluation
   3. [§120.24] Intensive Treatment
D. [§120.25] 72-Hour Hold for Treatment and Evaluation
              (Welf & I C §§5150, 5200)
   1. [§120.26] 72-Hour Hold—No Court Intervention
      a. [§120.27] Assessment, Evaluation, and Treatment
     b. [§120.28] Probable Cause
  2. [§120.29] 72-Hour Hold—Court-Ordered Evaluation
      a. [§120.30] Order for Evaluation
      b. [§120.31] Evaluation and Treatment
      c. [§120.32] Confidentiality
   3. [§120.33] Criminal Defendant Afflicted With Chronic
                 Alcoholism or Drug Abuse (Welf & I C
                 §§5225- 5230)
      a. [§120.34] Requirements
      b. [§120.35] Disposition
   4. [§120.36] Administration of Medication
E. 14-Day Hold for Intensive Treatment (Welf & I C §5250)
   1. [§120.37] In General
   2. [§120.38] Notice and Service of Certification
   3. [§120.39] Prehearing Rights of Certified Person;
                 Notification of Family Members
   4. [§120.40] Conduct of Hearing
   5. [§120.41] Location of Hearing
   6. [§120.42] Evidence
   7. [§120.43] Hearing Rights of Certified Person
   8. [§120.44] Ruling After Hearing
   9. [§120.45] Disposition After 14-Day Hold
 10. [§120.46] Immunity for Action by Released Person
 11. [§120.47] Additional 14-Day Hold for Suicidal Persons
                 (Welf & I C §5260)
 12. [§120.48] Additional 30-Day Period for Intensive
                 Treatment
F. Medications and Medical Procedures
   1. [§120.49] Antipsychotic Medication
      a. [§120.50] Capacity (Riese) Hearing
      b. [§120.51] Findings
120–3                          LPS Proceedings



              c. [§120.52] Notification
             d. [§120.53] Effect of Determination
              e. [§120.54] Appeals
           2. [§120.55] Electroconvulsive Therapy
           3. [§120.56] Other Types of Treatment
        G. 180-Day Postcertification Treatment for Person
            Determined To Be Danger to Others
           1. [§120.57] Requirements
           2. [§120.58] Findings
           3. [§120.59] Subsequent Petitions
        H. Conservatorship for Gravely Disabled Persons
           1. [§120.60] Grounds for Appointment of Conservator
                         (Welf & I C §5350)
           2. [§120.61] Appointment of Conservator for Minor
           3. [§120.62] General Procedures; Comparison With
                         Probate Code Conservatorships
           4. [§120.63] Initiation of Proceedings
           5. [§120.64] Service and Notice
           6. [§120.65] Temporary Conservatorship
              a. [§120.66] Powers of Temporary Conservator
              b. [§120.67] Review by Habeas Corpus
              c. [§120.68] Additional Detention Period Pending
                           Petition for Temporary Conservatorship
              d. [§120.69] Expiration of Temporary Conservatorship
           7. [§120.70] Hearing/Trial
              a. [§120.71] Time and Place
              b. [§120.72] Appointment of Counsel
              c. [§120.73] Attendance at Hearing
           8. [§120.74] Evidence
              a. [§120.75] Investigation Report Not Admissible at
                           Trial
             b. [§120.76] Bizarre Behavior and Mental Disorder Not
                           Same as Grave Disability
              c. [§120.77] Only Present Condition Relevant
             d. [§120.78] Third Party Assistance Considered
          9. [§120.79] Witnesses
         10. Jury Issues
              a. [§120.80] Selection
             b. [§120.81] Instructions
              c. [§120.82] Burden of Proof/Jury Verdict
         11. [§120.83] Orders/Disposition
         12. [§120.84] Continuing Jurisdiction/Change of Placement
         13. [§120.85] Appeal of Judgment
         14. [§120.86] Termination of Conservatorship
§120.1                   California Judges Benchguide               120–4



          15. [§120.87] Petition for Rehearing
          16. [§120.88] Petition for Reappointment of Conservator
         I. [§120.89] Writ of Habeas Corpus
           1. [§120.90] Initiating the Proceeding
            2. [§120.91] Hearing
            3. [§120.92] Disposition
           4. [§120.93] Use of Findings
         J. Assisted Outpatient Treatment
           1. [§120.94] When Available
           2. [§120.95] Petition
           3. [§120.96] Hearing
            4. [§120.97] Order
            5. [§120.98] Subsequent Proceedings
            6. [§120.99] Settlement Agreements
   IV. SAMPLE FORMS
         A. [§120.100] Written Form: Order for Conservatorship—
                       Court Trial
         B. [§120.101] Written Form: Writ of Habeas Corpus
         C. [§120.102] Written Form: Order Granting/Denying
                       Rehearing
         D. [§120.103] Written Form: Notification of Impending
                       Termination (Welf & I C §5362)
         E. [§120.104] Written Form: Order Terminating
                       Conservatorship After Rehearing
         F. [§120.105] Written Form: Jury Instructions


I. [§120.1] SCOPE OF BENCHGUIDE
     This benchguide provides a procedural overview of court hearings
under the Lanterman-Petris-Short Act (the LPS Act) found in Welf & I C
§§5000–5550. The LPS Act sets forth procedures for involuntary mental
health evaluation and treatment. This benchguide includes procedural
checklists for court hearings, a brief summary of the applicable law, and
sample forms. For procedures referring a criminal defendant for a mental
health evaluation under the LPS Act in accordance with Pen C §4011.6,
see California Judges Benchguide 63: Competence To Stand Trial (Cal
CJER).
120–5                            LPS Proceedings                        §120.3



II. CHECKLISTS
A. [§120.2] Checklist: Court-Ordered Evaluation for 72 Hours
            (Welf & I C §§5200–5213)
      1. Attorneys serving as temporary judges should obtain a stipulation
from the parties under Cal Rules of Ct 2.831.
      2. Review the prepetition screening report prepared by the
designated agency before the hearing.
      3. Review the petition to determine whether all the elements of Welf
& I C §§5204 and 5205 are included.
      4. If the person who is the subject of the petition is present at the
hearing, question the person and determine whether he or she is willing to
accept voluntary treatment.
      5. If the person will not consent to voluntary treatment or is not
present in court, make a finding as to whether there is probable cause to
order a 72-hour evaluation. Welf & I C §5206.
      6. If no probable cause is found, dismiss the petition.
      7. If probable cause is found, direct the petitioner or clerk to prepare
an order that complies with Welf & I C §5207. The court should direct that
the order must be personally served as promptly as possible on the person
to be evaluated, and on the professional person in charge of the evaluation
facility, by a peace officer, mental health counselor, or other person
appointed by the court. See Welf & I C §§5206, 5208.

B. [§120.3] Checklist: Court-Ordered Evaluation for Criminal
            Defendant Afflicted With Chronic Alcoholism or Drug
            Abuse (Welf & I C §§5225–5230)
     1. Attorneys serving as temporary judges should obtain a stipulation
from the parties under Cal Rules of Ct 2.831.
     2. Advise the defendant of his or her right to continue immediately
with the criminal proceeding, of the consequences that will occur if the
evaluation procedures are chosen, and of the right to have legal counsel
at the proceedings at which the choice is made. Welf & I C §5226; see
§120.31.
     3. If ordering an evaluation, prepare an order in the form set forth in
Welf & I C §5227 and direct that the order must be personally served as
promptly as possible on the person to be evaluated and the professional
person in charge of the evaluation facility. See Welf & I C §5228; see
§120.34.
     4. Dismiss or suspend proceedings on the criminal charges until the
evaluation, and, if applicable, the subsequent involuntary detention of the
person are completed. Welf & I C §5226.1; see §120.34.
     5. If the defendant is recommended for conservatorship during
evaluation or involuntary detention, and if the criminal charge has not
§120.4                   California Judges Benchguide                 120–6



been dismissed, dispose of the criminal charge before initiation of the
conservatorship proceedings. Welf & I C §5226.1; see §120.35.
     6. If appropriate, order the defendant detained in the evaluation or
treatment facility until the date set for resumption of the criminal
proceedings. Welf & I C §5226.1.

C. [§120.4] Checklist: Certification Review Hearing After 14-Day
            Hold Ordered (Welf & I C §5254)
    The hearing must be conducted by a court-appointed commissioner
or referee, or a hearing officer who is either a state qualified
administrative law hearing officer, a medical doctor, a registered nurse, a
lawyer, a certified law student, or a licensed psychologist, clinical social
worker, or marriage and family therapist with a minimum of five years of
experience in mental health. Welf & I C §5256.1.
      1. Determine whether the person certified has filed a petition for
habeas corpus relief. If so, the person is not entitled to a certification
review hearing. Welf & I C §5256.
      2. Review the notice of certification and determine whether it has
been signed by the person in charge of the evaluation facility or his or her
designee, and a physician, licensed psychologist, registered nurse, or
licensed clinical social worker who participated in the evaluation. Welf &
I C §5251.
      3. Determine whether the notice has been properly served on the
person and sent to his or her attorney (often the public defender) or
advocate or any other person designated by the certified person. Welf & I
C §5253; see §120.38.
      4. Determine whether the hearing is being held within four days of
certification unless judicial review has been requested (see Welf & I C
§§5275–5276), or the hearing has been postponed at the request of the
person certified or his or her attorney or advocate. See Welf & I C
§§5254, 5256.
      5. Ask the person certified whether he or she has met with an attorney
or patient advocate and discussed the commitment process and any
questions the person may have about the certification process and review
hearing. See Welf & I C §5255.
      6. Determine whether the mental health facility has made reasonable
efforts to notify family members or others designated by the certified
person of the date and place of the hearing, or in the alternative, that the
certified person has requested that this information not be provided to
family members. Welf & I C §5256.4(c).
      7. Inquire whether the certified person has recently taken any
medication and, if so, what the probable effects are. Welf & I C
§5256.4(a)(5).
120–7                           LPS Proceedings                       §120.5



      8. Consider evidence from the designee of the director of the medical
facility and the district attorney or county counsel, if appropriate. Welf &
I C §5256.2.
      9. Consider evidence presented from the certified person, including
any written statements from family, friends, or others who indicate a
willingness and ability to assist with the certified person’s basic personal
needs for food, clothing, or shelter. See Welf & I C §5250(d)(1)–(2).
Resistance to involuntary commitment alone does not indicate evidence of
a mental disorder, danger to self or others, or grave disability. Welf & I C
§5256.4(e).
      10. At the end of the hearing, determine whether there is probable
cause to believe that the person is gravely disabled or a danger to self or
others. Welf & I C §5256.6. If no probable cause is found, the court must
either order the person released from involuntary detention, or, if the
person consents, allow the person to remain voluntarily at the facility. See
Welf & I C §5256.5.
      11. If probable cause is found, order the person detained for
involuntary treatment. Welf & I C §5256.6.

D. [§120.5] Checklist: Establishment of LPS Conservatorship
            (Welf & I C §5350)
      1. Before the hearing, appoint the public defender or other attorney
for the proposed conservatee. Welf & I C §5365 (appointment must be
made within five days after the date of the petition).
      2. Determine whether the proposed conservatee will consent to the
conservatorship or waive attendance at the trial or hearing. See Prob C
§1825.
      3. Determine whether there has been a demand for a jury or a court
trial. If the demand for a jury or a court trial is made before the hearing
would have occurred, the demand constitutes a waiver of the hearing.
Welf & I C §5350(d).
      4. Determine whether, on advice of counsel, the proposed
conservatee (a) waives the presence of the physician or other professional
who recommended conservatorship under Welf & I C §5352, (b) waives
the presence of any treating physician, and (c) stipulates to admission of
recommendation and reports into evidence. Welf & I C §5365.1.
      5. If the proposed conservatee does not consent to the
conservatorship, hear evidence on the issue of whether the proposed
conservatee is gravely disabled. Evidence may include
      • The historical course of the mental disorder,
      • Expert testimony based on hearsay, and
      • Testimony or affidavits concerning third party assistance.
§120.6                   California Judges Benchguide                120–8



     Evidence may not include
     • Speculation about future disability, or
     • The conservatorship investigation report if it contains inadmissible
       hearsay.
      See §§120.70–120.78.
      6. After a hearing, determine whether the proposed conservatee is
gravely disabled by the “beyond a reasonable doubt” standard. If grave
disability is found, the judge should appoint a conservator; if not, the
judge should dismiss the petition and order the person discharged from the
facility if appropriate. Conservatorship of Johnson (1991) 235 CA3d 693,
696, 1 CR2d 46.
      7. Determine whether there has been a demand for a jury or a court
trial after the hearing. The demand may be made within five days
following the hearing. Welf & I C §5350(d).
      8. Schedule the jury or court trial if demanded and rehear the
evidence. (See steps 4 and 5, above.)
      9. If there has been a jury trial and a unanimous finding of grave
disability beyond a reasonable doubt (or if the court makes this finding
after a court trial), appoint a conservator and designate the conservator’s
powers. If there has not been such a finding, the judge should dismiss the
petition and order the person discharged from the facility, if appropriate.

III. APPLICABLE LAW
A. LPS Act—In General
     1. [§120.6] Purposes
    Generally, the legislative intent of the LPS Act (see Welf & I C
§5001) is as follows:
    (1) To end the inappropriate, indefinite, and involuntary
       commitment of mentally disordered persons, developmentally
       disabled persons, and persons impaired by chronic alcoholism, and
       to eliminate legal disabilities;
    (2) To provide prompt evaluation and treatment of persons with
       serious mental disorders or those impaired by chronic alcoholism;
    (3) To guarantee and protect public safety;
    (4) To safeguard individual rights through judicial review;
    (5) To provide individual treatment, supervision, and placement
       services by a conservatorship program for gravely disabled
       persons;
    (6) To encourage the full use of all existing agencies, professional
       personnel, and public funds to accomplish these objectives and to
       prevent duplication of services and unnecessary expenditures; and
120–9                           LPS Proceedings                       §120.7



     (7) To protect mentally disordered persons and developmentally
       disabled persons from criminal acts.
      The LPS Act is intended to ensure that prompt, short-term,
community-based intensive treatment is provided, without stigma or loss
of liberty, to individuals with mental disorders who are either dangerous or
gravely disabled. Ford v Norton (2001) 89 CA4th 974, 977, 107 CR2d
776. Another purpose of the LPS Act is to protect an individual from the
consequences of his or her illness by providing remedial treatment.
Conservatorship of Rodney M. (1996) 50 CA4th 1266, 1271, 58 CR2d
513. See also Welf & I C §5350.1 (purpose of conservatorship is to
provide individualized treatment, supervision, and placement). The LPS
Act represents a balance between prompt intervention for the purpose of
treating gravely disabled people and protection of their rights not to be
deprived of freedom without due process. Conservatorship of Kevin M.
(1996) 49 CA4th 79, 89, 56 CR2d 765. It has been described as
“scrupulously protect[ing] the rights of involuntarily detained mentally
disordered persons.” Edward W. v Lamkins (2002) 99 CA4th 516, 526,
122 CR2d 1. The LPS Act expressly guarantees these persons a number of
legal and civil rights, and provides that involuntarily detained patients
retain all rights not specifically denied under the Act. Welf & I C §§5325,
5327; 99 CA4th at 526.
      Legislative intent strongly promotes family involvement in LPS
proceedings and procedures to remedy historical barriers to the LPS
system for many families of persons with serious mental illness and to
ensure that families are a part of the system response. Health & S C
§1374.51; Stats 2001, ch 506, §§1–2 (AB 1424).
      The fact that a person has been taken into custody under the LPS Act
may not be used in the determination of the person’s eligibility for
payment or reimbursement for mental health or other health care services
for which he or she applied (or received) under the Medi-Cal program, any
health care service plan licensed under the Knox-Keene Health Care
Service Plan Act (Health & S C §§1340 et seq), or any insurer providing
health coverage doing business in this state. Welf & I C §5012.
      Because the procedures for establishing, administering, and
terminating an LPS conservatorship are largely the same as those provided
in the Guardianship-Conservatorship Law (Prob C §§1400–3925), some of
the procedures discussed in this benchguide are found in the statutes and
rules governing probate conservatorships. See Welf & I C §5350,
discussion in §120.62.

     2. [§120.7] Standards for Appointment of Counsel
     California Rules of Ct 7.1101(b) sets out qualifications for private
attorneys appointed in conservatorship cases, and Cal Rules of Ct
§120.8                    California Judges Benchguide                  120–10



7.1101(c) sets out requirements for public defenders. Educational
requirements for attorneys are set out in Cal Rules of Ct 7.1101(f).

     2. [§120.8] Exclusions From Act
     Persons generally excluded from the LPS Act include mentally
disordered sex offenders, mentally retarded persons, and mentally
disordered criminal offenders, unless Pen C §4011.6 or other statutes
specifically provide otherwise. See Welf & I C §5002. See also Pederson
v Superior Court (2003) 105 CA4th 931, 940, 130 CR2d 289 (invalidating
as unconstitutional Pen C §1367.1, which requires misdemeanor
defendants suspected of incompetence due to mental disorder to submit to
LPS involuntary evaluation and treatment before or instead of a
competency determination in that it deprives misdemeanor defendants of
equal protection because felony defendants are not required to undergo
LPS evaluation and treatment before competency determination). In
addition, conservatorship of a person with dementia, as defined in the
Diagnostic and Statistical Manual of Mental Disorders, should be handled
under Prob C §2356.5, not under the LPS Act. The primary difference in
the powers between a Probate Code conservator and an LPS Act
conservator is that the LPS conservator has the power to place a
conservatee in a locked facility, and the Probate Code conservator does
not. People v Karriker (2007) 149 CA4th 763, 780, 57 CR3d 412.
     The initial 72-hour evaluation and treatment of minors is covered by
the Children’s Civil Commitment and Mental Health Treatment Act of
1988 (Welf & I C §§5585–5585.59). But the LPS Act covers treatment
and evaluation of minors after the initial 72-hour period. Welf & I C
§§5585.20, 5585.53, 5585.55.

     3. [§120.9] The LPS Assignment
      Many judges believe that the LPS assignment differs from other
judicial assignments in that it is appropriate for the judicial officer to take
a more active role in questioning, while maintaining impartiality and
ensuring that the patient is not asked questions that might lead to self-
incrimination. See discussion in §120.79 on the proposed conservatee as
witness. Some judges see part of their role as providing as positive an
experience as possible for the proposed conservatee and family during
difficult circumstances and as treating the proposed conservatee with
dignity and respect.
   JUDICIAL TIP: Judicial officers should resist the impulse to be
    paternalistic in speaking to or about the proposed conservatee. It
    is especially important not to speak in the third person and to
    address the proposed conservatee as Mr. or Ms. It is also
120–11                          LPS Proceedings                      §120.10



      important to be patient when the proposed conservatee is abusive,
      incoherent, or rambling.
     Even though judges may assume an active role, the court may not
permit ex parte communications from a party or an attorney unless there
has been a stipulation to the contrary by all the parties. Cal Rules of Ct
7.10(b). Nevertheless, a judge may hear certain ex parte communications
regarding performance of fiduciaries or information regarding a
conservatee in a case that has not yet been concluded by final discharge.
Cal Rules of Ct 7.10(c). See also discussion in §120.32.

B. [§120.10] Procedural Overview
      Under the LPS Act, a person who is dangerous or gravely disabled
because of a mental disorder may be detained for involuntary treatment.
These detentions, however, are implemented incrementally in accordance
with the legislative purpose of preventing inappropriate, indefinite
commitments of mentally disordered persons. Conservatorship of Ben C.
(2007) 40 C4th 529, 541, 53 CR3d 856. The LPS Act provides for varying
periods of detention in designated mental health facilities, depending on
the nature and duration of the person’s illness; it provides for a carefully
calibrated series of temporary detentions for evaluation and treatment and
limits involuntary commitment to successive periods of increasingly
longer duration. People v Allen (2007) 42 C4th 91, 106, 64 CR3d 124.
      Some of the detention periods involve court action, while others do
not. Typically a person enters the mental health system by being placed on
a 72-hour hold under Welf & I C §5150 either directly or from the
criminal justice system under Pen C §4011.6. This may be succeeded by a
14-day hold (see Welf & I C §5250), which may be extended for an
additional 30-day period for intensive treatment (see Welf & I C
§5270.15). After an initial 72-hour detention, the 14-day and 30-day
commitments each require a certification hearing before a hearing officer,
and then a 180-day commitment is possible by a superior court order.
People v Allen, supra, 42 C4th at 106-107, quoting Conservatorship of
Ben C., supra. A court-ordered temporary conservatorship of 30 days is
also possible (Welf & I C §5352.1), as well as a one-year conservatorship
initiated by a petition to the superior court (Welf & I C §§5350, 5361;
Prob C §§1400 et seq). Once established, a conservatorship terminates
automatically at the end of one year, unless a petition is sought to
reestablish it at or before the end of the one-year period (Welf & I C
§§5361, 5362; People v Allen, supra, 42 C4th at 136). These involuntary
placements may also be terminated before the expiration of the
commitment period. Thus, the LPS Act assures a person who has been
properly detained of an opportunity for early release. Ford v Norton
(2001) 89 CA4th 974, 979, 107 CR2d 776.
§120.11                   California Judges Benchguide                  120–12



     See §§120.11–120.17 for a brief overview of the procedures involved
in the involuntary confinement of a person under the LPS Act.

     1. 72-Hour Hold (Welf & I C §§5150, 5200)
          a. [§120.11] Placing the Hold
      A police officer or other designated person may place a person in a
mental health facility for 72 hours of treatment and evaluation, without
any court action, when that person is considered to be a danger to self or
others or is gravely disabled because of a mental disorder. Welf & I C
§5150. This action may only be taken on probable cause based on specific
and articulable facts. See Welf & I C §§5150, 5150.05; Heater v
Southwood Psychiatric Ctr. (1996) 42 CA4th 1068, 1080, 49 CR2d 880;
People v Triplett (1983) 144 CA3d 283, 288, 192 CR 537.
      To legally justify detention, a police officer must point to specific and
articulable facts that, taken together with rational inferences from those
facts, reasonably warrant his or her belief or suspicion, and such facts
would lead a person of ordinary care and prudence to believe, or to
entertain a strong suspicion that the person detained is mentally disordered
and is a danger to himself or herself. Bias v Moynihan (9th Cir 2007) 508
F3d 1212, 1220.
      A 72-hour hold may also be ordered by the court after a petition is
filed under Welf & I C §§5200–5201. See §§120.25–120.31.

          b. [§120.12] After Admission
     A person admitted to a mental health facility on a 72-hour hold must
receive an evaluation as soon as possible after admission. Welf & I C
§5152(a). Before expiration of the 72-hour period, the facility may release
the person, may certify the person for intensive treatment, may
recommend a conservatorship, or may refer the person for further
treatment on a voluntary basis. See Welf & I C §5152(b). The person may
be released early only when the psychiatrist who is directly responsible for
the person’s treatment believes, as a result of his or her personal
observations, that the person no longer requires evaluation or treatment.
Welf & I C §5152(a); Ford v Norton (2001) 89 CA4th 974, 980–981, 107
CR2d 776 (although LPS Act permits broad range of persons to initiate
72-hour detention, only psychiatrist can authorize early release); see
Coburn v Sievert (2005) 133 CA4th 1483, 1503–1504, 35 CR3d 596
(language in Welf & I C §5152(a) providing that treating psychiatrist may
grant early release of person from involuntary commitment imposes
subjective standard of belief that release is proper rather than an objective
standard of reasonableness).
     If both a psychiatrist and a psychologist have personally evaluated or
examined a person placed under a 72-hour hold, and there is a
120–13                          LPS Proceedings                       §120.13



collaborative treatment relationship between them, either the psychiatrist
or psychologist may authorize the person’s early release but only after
they have consulted with one another. If a clinical or professional
disagreement occurs regarding the early release of a person placed under a
72-hour hold, the hold must be maintained unless the facility’s medical
director overrules the decision of the psychiatrist or psychologist opposing
the release. Both the psychiatrist and psychologist must enter their
findings, concerns, or objections into the person’s medical record. Welf &
I C §5152(a).
     In addition, a petition for evaluation may be filed under Welf & I C
§5200. Any person may apply to the appropriate county agency or official
to request an evaluation of a person thought to be gravely disabled or a
danger to self or others as a result of a mental disorder. Welf & I C §5201.
The agency must investigate and must file the petition if there is probable
cause to believe that the person, as a result of a mental illness, is gravely
disabled or a danger to self or others and that the person will not
voluntarily consent to receive services. Welf & I C §5202; see §§120.29–
120.32.

         c. [§120.13] Liability for Exercise of Authority
      Persons and entities, such as hospitals and clinics, authorized to
detain a mentally disordered person for a 72-hour period may not be held
criminally or civilly liable for exercising this authority in accordance with
the law. Welf & I C §5278; Cruze v National Psychiatric Servs., Inc.
(2003) 105 CA4th 48, 56–58, 129 CR2d 65 (applying immunity to
institutions and agencies with which health care professionals are
associated, affiliated, or employed). If the provisions of Welf & I C §5152
have been met, the professional person in charge of the facility providing
the 72-hour treatment and evaluation, the medical director of the facility
(or their designees), the psychiatrist who is directly responsible for the
person’s treatment, or the psychologist may not be held civilly or
criminally liable for any action by the person following his or her early
release. Welf & I C §5154(a); Coburn v Sievert (2005) 133 CA4th 1483,
1504–1505, 35 CR3d 596 (psychiatrist who released patient early from
involuntary commitment was immune from liability for patient’s actions
after release in absence of evidence that psychiatrist had an inappropriate
reason for granting early release or any reason other than an honest,
though perhaps negligent, belief that patient no longer needed evaluation
or treatment). Similarly, such persons and entities may not be held civilly
or criminally liable for actions committed by a person who has been
released at the end of the initial 72-hour commitment. Welf & I C
§5154(b). See §120.46.
      In enacting the immunity provided by Welf & I C §5278, the
Legislature did not intend to exonerate health care providers from all
§120.14                  California Judges Benchguide                 120–14



liability. Jacobs v Grossmont Hosp. (2003) 108 CA4th 69, 79, 133 CR2d
9. The scope of immunity under Welf & I C §5278 extends to claims
based on facts that are inherent in an involuntary detention under Welf & I
C §5150. If there is probable cause for the detention, the statute provides
immunity for the decision to detain as well as for the detention and its
inherent attributes. Bias v Moynihan (9th Cir 2007) 508 F3d 1212, 1220;
Jacobs v Grossmont Hosp., supra, 108 CA4th at 78. This immunity,
however, does not extend to negligent acts, intentional torts, or criminal
wrongs committed during the course of a detention, evaluation, or
treatment. 108 CA4th at 78–79; see Gonzalez v Paradise Valley Hosp.
(2003) 111 CA4th 735, 737, 742, 3 CR3d 903 (clarifying that immunity of
Welf & I C §5278 does not extend to any negligent acts; inclusion of word
“other” in Jacobs was unintended). Thus, for example, a hospital is not
immune from a patient’s professional negligence claim or premises
liability claim arising from a patient’s slip and fall during an otherwise
valid 72-hour hold. See Jacobs v Grossmont Hosp., supra, 108 CA4th at
72–73, 80.

          d. [§120.14] Confiscation of Weapons
      When a person is taken into custody for evaluation of an apparent
mental disorder under Welf & I C §5150, the detaining officer may
confiscate any firearms or other deadly weapons owned or possessed by
the person. Welf & I C §8102. The confiscated weapon(s) must be
returned to the person unless the law enforcement agency, within 30 days
of the person’s release, files a petition with the court to determine whether
returning the weapon(s) would be likely to result in endangering the
person or others, and sends the person notice of his or her right to a
hearing on this issue. Welf & I C §8102(c); see Ruff v Yan (2000) 85
CA4th 411, 420–428, 102 CR2d 157 and People v One Ruger .22-Caliber
Pistol (2000) 84 CA4th 310, 313–314, 100 CR2d 780 (upholding
constitutionality of this procedure). At this hearing, the court may allow
the psychiatrist who examined the person during his or her confinement to
testify on the issue of whether the person is a danger to self or others. 84
CA4th at 314–315 (Evid C §1024 affords exception to patient-
psychotherapist privilege when psychotherapist has reasonable cause to
believe that patient is dangerous to self or others, and that disclosure of
otherwise privileged communication is necessary to prevent threatened
danger). The court may also admit testimony of the detaining officer
regarding his or her observations of the person or consider the officer’s
report. See Ruff v Yan, supra, 85 CA4th at 428–432 (assuming, without
deciding, that hearing is subject to rules of evidence applicable in civil
cases and not to more relaxed evidentiary rules used in administrative
proceedings). The court may consider whether the circumstances leading
to the 72-hour hold might occur again, and whether possession or control
120–15                          LPS Proceedings                       §120.17



of the confiscated weapon(s) in this event would pose a risk of danger to
the detained person or others. 85 CA4th at 424.
     The law enforcement agency that possesses the weapons that were
confiscated from the owner due to mental illness must initiate the
proceeding for forfeiture of the weapons and bears the burden of proof.
People v Keil (2008) 161 CA4th 34, 38, 73 CR3d 600.

     2. [§120.15] 14-Day Certification for Intensive Treatment
                  (Welf & I C §5250)
     Before the end of the 72-hour hold, if the staff of the hospital
determines that the person is not ready for release and the person will not
consent to voluntary treatment, the staff may certify him or her for up to
14 days of intensive treatment. Welf & I C §5250. The person is entitled to
a certification review hearing within four days of certification unless
judicial review has been granted under Welf & I C §§5275 and 5276. Welf
& I C §5256. See §§120.37–120.45 for discussion of 14-day holds for
intensive treatment.
     Suicidal patients may be certified for an additional 14 days of
intensive treatment after the initial 14-day period, but must be released at
the end of the 28 days unless they consent to voluntary treatment. Welf &
I C §5260. The certified person must be advised of the right to judicial
review by habeas corpus. Welf & I C §5262; see §120.47.
     The 14-day hold may be extended for up to 30 days for persons who
remain gravely disabled in counties whose board of supervisors so
authorize by resolution. See Welf & I C §§5270.10–5270.65; see §120.48.

     3. [§120.16] 180-Day Postcertification Hold (Welf & I C
                  §5300)
      Those who present a demonstrated danger of substantial physical
harm to others may be confined for further treatment for up to 180 days
under Welf & I C §§5300–5309. Welf & I C §5300. A 180-day
commitment requires an order by the superior court. Welf & I C §5301;
Conservatorship of Ben C. (2007) 40 C4th 529, 541, 53 CR3d 856. A
postcertification hearing must be held within four judicial days after a
petition is filed. Welf & I C §5303. The person may be held for one 180-
day period only, unless the public officer files another postcertification
petition alleging that the person attempted, inflicted, or made a substantial
threat of physical harm to another during the first 180-day period. Welf &
I C §5304(b); see §§120.57–120.59.

     4. [§120.17] LPS Conservatorship (Welf & I C §5350)
     Conservatorship is an additional means by which a patient may be
involuntarily committed for psychiatric treatment. Edward W. v Lamkins
§120.18                  California Judges Benchguide                120–16



(2002) 99 CA4th 516, 526, 122 CR2d 1. At any time during the short-term
periods of confinement for treatment and evaluation, if a person is
considered to be gravely disabled because of a mental disorder or chronic
alcoholism, the mental health professional in charge of the facility may
file a petition to establish a conservatorship of the person that may extend
for one year. See Welf & I C §§5352, 5361. After the conservatorship is
established, the person may be held for treatment on the authorization of
the court-appointed conservator. Welf & I C §5358. The conservatee may
petition at any time for rehearing of his or her status; however, once a
petition for rehearing is filed, a six-month period must elapse before
another petition may be filed. Welf & I C §5364. A petition to reestablish
a conservatorship may be filed by the conservator at or before the one-year
termination date. Welf & I C §5362. See §§120.60–120.88.

C. [§120.18] Definitions
      Welfare and Institutions Code §5008 defines terms used in the LPS
Act. Some of the more commonly used terms and their definitions are
listed below.

     1. Gravely Disabled
          a. [§120.19] General Definition
     “Gravely disabled” is defined as a condition in which a person is
unable to provide for his or her basic personal needs for food, clothing, or
shelter as a result of a mental disorder or impairment by chronic
alcoholism. Welf & I C §5008(h)(1)(A), (2). It is not part of the meaning
of grave disability that the person is unwilling to accept treatment
voluntarily. Nondangerous, mentally ill persons can refuse treatment as
long as they can provide for themselves. Conservatorship of Walker
(1987) 196 CA3d 1082, 1093–1094, 242 CR 289.
   JUDICIAL TIP: It is important to adhere to the definition of
    “gravely disabled”; living on the streets or adhering to other
    lifestyles that might be seen as dysfunctional is not synonymous
    with having a grave disability. Judicial officers need to resist the
    temptation to help a proposed conservatee who might benefit
    from treatment but whose condition does not meet the legal
    standard of “gravely disabled.”
     In a proceeding to reestablish an LPS conservatorship under Welf & I
C §5361 (see §120.88), the judge’s instruction to the jury that the
individual could be considered gravely disabled if the jury found that he
would not take medication for a mental disorder, and that without his
medication he would be unable to provide for his basic needs of food,
clothing, and shelter, did not improperly create an alternative basis not
120–17                          LPS Proceedings                      §120.21



contained in Welf & I C §5008(h)(1)(A) for a finding of grave disability.
Conservatorship of Guerrero (1999) 69 CA4th 442, 445–446, 81 CR2d
541. If the evidence shows that the person is not currently gravely
disabled, but may become so because of a failure to take medication, an
LPS conservatorship cannot be established. 69 CA4th at 446. Likewise, a
person cannot be found gravely disabled because he or she will not
voluntarily accept treatment. 69 CA4th at 446. The conservator must show
that the conservatee is currently gravely disabled, not that he or she may
relapse and become gravely disabled in the future. 69 CA4th at 446. The
instruction given in this case provided an appropriate framework for the
jury to consider whether the conservatee was presently gravely disabled
based on expert testimony that the conservatee did not believe he was ill,
would not take his medication without supervision, could not provide for
his basic needs without assistance, and that his condition would deteriorate
without medication. 69 CA4th at 446–447.
      A person is also “a danger to others or to himself or herself, or
gravely disabled” under the LPS Act if he or she is a danger or gravely
disabled as the result of using controlled substances. Any custody,
evaluation, and treatment, or any procedures under the LPS Act must
relate to and concern the problem of the person’s use of controlled
substances. Welf & I C §§5342, 5343.
   JUDICIAL TIP: Use the California Civil Jury Instructions
    (CACI) series 4200 samples at §120.105 to help identify evidence
    required and issues in the “gravely disabled” determination
    whether there is a court or jury trial.

         b. [§120.20] Person Found Incompetent Under Pen C §1370
    “Gravely disabled” also includes a condition in which a person has
been found mentally incompetent under Pen C §1370 and (Welf & I C
§5008(h)(1)(B)):
    • A pending indictment or information charges the person with a
       felony involving death, great bodily harm, or a serious physical
       threat to another;
    • The indictment or information has not been dismissed; and
    • Because of a mental disorder, the person is unable to understand
       the nature and purpose of the proceedings against him or her and is
       unable to assist counsel in his or her defense in a rational manner.

         c. [§120.21] Mentally Retarded Persons
      Mentally retarded persons are not gravely disabled solely because of
their mental retardation (Welf & I C §5008(h)(3)) although someone with
§120.22                  California Judges Benchguide                 120–18



a dual diagnosis of mental retardation and mental illness who has a
primary diagnosis of mental illness may well be subject to the LPS Act.
      For a person to be “mentally retarded” for purposes of a commitment
proceeding under Welf & I C §§6500–6513, the evidence must show that
the person has significantly subaverage general intellectual functioning,
that this functioning exists concurrently with deficits in adaptive behavior,
and that both of these deficits appeared in the developmental period. In re
Krall (1984) 151 CA3d 792, 797, 199 CR 91 (expert testimony is required
to support jury finding of mental retardation).

          d. [§120.22] Minors
     For minors, “grave disability,” for purposes of the initial 72-hour
evaluation and treatment, is defined by Welf & I C §5585.25 as inability
to use those elements of life that are essential to health, safety, and
development, including food, clothing, and shelter, although provided by
others. See Welf & I C §5585.20 (Children’s Civil Commitment and
Mental Health Treatment Act of 1988 applies only to initial 72 hours;
thereafter standard LPS procedures and definitions apply).

     2. [§120.23] Evaluation
     Evaluation consists of multidisciplinary, professional analyses of a
person’s medical, psychological, educational, social, financial, and legal
conditions that may appear to constitute a problem. Welf & I C §5008(a).
Providers of evaluation services must be qualified professionals who may
be employed full or part time by a qualified agency or may provide
services under contract. Welf & I C §5008(a).
     “Court-ordered evaluation” means an evaluation ordered by a
superior court under Welf & I C §§5200–5213 (mental disorder) or
§§5225–5230 (chronic alcoholism or drug abuse). Welf & I C §5008(b).

     3. [§120.24] Intensive Treatment
     Intensive treatment consists of hospital and other services as may be
indicated by the person’s condition; it must be provided by qualified
professionals and carried out in qualified treatment facilities. Welf & I C
§5008(c).

D. [§120.25] 72-Hour Hold for Treatment and Evaluation (Welf &
             I C §§5150, 5200)
      The LPS Act provides two methods by which a person may be held
for treatment and evaluation for 72 hours in a county facility when there is
probable cause to believe that the person, as a result of a mental disorder,
is gravely disabled or a danger to self or others. The first method is
initiated by personal observation by a police officer, mental health
120–19                          LPS Proceedings                       §120.27



professional, or judicial officer (see Pen C §4011.6) under Welf & I C
§5150, and the second by court-ordered evaluation under Welf & I C
§5200.

     1. [§120.26] 72-Hour Hold—No Court Intervention
      Under Welf & I C §5150, a person may be held for treatment and
evaluation for 72 hours in a county facility approved by the State
Department of Mental Health if there is probable cause to believe that the
person, as a result of a mental disorder, is gravely disabled or is a danger
to self or others. The person may be taken into custody only on the basis
of personal observation by a peace officer, a member of the attending staff
of a county evaluation facility, or another mental health professional
designated by the county. Welf & I C §5150. See also Welf & I C §§5170,
5172 (similar procedure for those who are gravely disabled or a danger to
self or others because of inebriation). There is no court involvement at this
stage, although a person who is involuntarily detained retains the
constitutional right to petition for a writ of habeas corpus. See US Const
art I, §9; Cal Const art I, §11. See also Welf & I C §5275 (any person
committed to state hospital has right to habeas corpus); Pen C §1473 (any
person unlawfully restrained of his or her liberty may bring writ of habeas
corpus to challenge restraint). For discussion of habeas corpus, see
§§120.89–120.93.
      Any person who takes another person into custody under Welf & I C
§5150 must orally inform the person taken into custody of the statutorily
specified information. Welf & I C §5157(a). When the person is admitted
to a designated facility for a 72-hour evaluation and treatment, the
admission staff must inform the person, orally and in writing, of certain
statutorily specified information. Welf & I C §5157(c). This facility must
keep records of the advisement. Welf & I C §5157(b), (d).

         a. [§120.27] Assessment, Evaluation, and Treatment
     Before admission to the facility for the 72-hour period, the mental
health professional designated by the facility must assess the individual in
person to determine the appropriateness of the involuntary detention. Welf
& I C §5151. “Assessment” means the determination of whether a person
is to be evaluated and treated under Welf & I C §5150. Welf & I C
§5150.4. Thereafter, the person may be detained for evaluation and
treatment for a period not to exceed 72 hours, excluding Saturdays,
Sundays, and holidays if the Department of Mental Health certifies (as to
each facility) that services cannot reasonably be provided on those days.
Welf & I C §5151.
§120.28                  California Judges Benchguide                120–20



          b. [§120.28] Probable Cause
     When determining if probable cause exists to take a person into
custody under Welf & I C §5150, available relevant information about the
historical course of the person’s mental disorder must be considered if this
information has a reasonable bearing in determining whether the person is
a danger to self or others, or is gravely disabled as a result of the mental
disorder. Welf & I C §5150.05(a). The information to be considered
includes evidence presented by the individual who has provided or is
providing mental health or related support services to the person to be
detained, evidence presented by the person’s family members, and
evidence presented by the person or anyone he or she has designated. Welf
& I C §5150.05(b). If probable cause is based on the statement of a person
other than the person authorized to take the mentally disordered person
into custody, a member of the attending staff, or a professional person, the
person making the statement may be liable in a civil action for
intentionally giving any statement he or she knows to be false. Welf & I C
§5150.05(c).
     Probable cause for involuntary detention is satisfied if the authorized
person knew of facts that would lead a person of ordinary care and
prudence to believe or entertain a strong suspicion that the detained person
has a grave disability or is a danger to self or others because of a mental
disorder. Welf & I C §5150. The facts must be specific and articulable and
taken together with rational inferences must support the authorized
person’s belief or suspicion. Heater v Southwood Psychiatric Ctr. (1996)
42 CA4th 1068, 1080, 49 CR2d 880.

     2. [§120.29] 72-Hour Hold—Court-Ordered Evaluation
      Under Welf & I C §5200, any person may make an application to the
responsible county agency or person (usually the public guardian or public
conservator) and request an evaluation of a person thought to be gravely
disabled. Welf & I C §5201. Anyone who knowingly makes a false
application for a petition is guilty of a misdemeanor and may be held
civilly liable for damages to the person against whom the petition is
sought. Welf & I C §5203.
      After the application is made, the responsible county entity (usually
the court investigator) prepares a confidential prepetition screening report
and determines whether there is probable cause to believe the allegations
in the application. Welf & I C §5202. A reasonable investigation must be
conducted and an attempt to interview the subject of the petition must be
made to determine whether the person will voluntarily receive crisis
intervention services or will allow an evaluation in the person’s home or in
an approved facility. Welf & I C §5202. The prepetition screening should
also include an interview with the petitioner. See Welf & I C §5008(f).
120–21                          LPS Proceedings                       §120.31



     After investigation, if the agency determines that there is probable
cause to believe that the person, as a result of a mental illness, is gravely
disabled or a danger to self or others and that the person will not
voluntarily consent to receive services, it must file the petition with the
court along with the prepetition report. Welf & I C §5202. The required
contents of the petition are set forth in Welf & I C §§5204 and 5205, and
include the names of the petitioner and person alleged to have a mental
disorder, the facts on which the allegations are based, and the names of
those who are believed to be responsible for the care and support of the
person who is the subject of the petition.

         a. [§120.30] Order for Evaluation
     The court must consider the petition and prepetition screening report
and determine whether there is probable cause to order a 72-hour
evaluation. Welf & I C §5206. If there is probable cause, the order for an
evaluation must be in substantially the same form as set forth in Welf & I
C §5207. The order must be personally served as promptly as possible on
both the person to be evaluated and the professional person in charge of
the evaluation facility. Welf & I C §5208. Service of the evaluation order
must be made by a peace officer, mental health counselor, or other person
appointed by the court who must dress in plain clothes and travel in an
unmarked vehicle whenever possible. Welf & I C §§5206, 5212. Failure to
effect service may render a subsequent detention unlawful. Culbertson v
Santa Clara County (1968) 261 CA2d 274, 275, 67 CR 752.
     If the person to be evaluated fails to appear at the time designated in
the order, the person who served the order must have the person to be
evaluated detained under the order. Welf & I C §5208.

         b. [§120.31] Evaluation and Treatment
     The person must be evaluated as promptly as possible, but in no
event may he or she be detained longer than 72 hours, excluding
Saturdays, Sundays, or holidays if treatment and evaluation services are
not available on those days. Welf & I C §5213. If on evaluation the person
is found to need treatment because of a mental disorder rendering that
person a danger to self or others, he or she may be detained for treatment
for 72 hours. Welf & I C §5213.
     Depending on the results of the evaluation, the person must be
released, referred for care and treatment on a voluntary basis, certified for
intensive treatment (see §§120.37–120.48), or recommended for LPS
conservatorship (see §§120.60–120.88). Welf & I C §5206.
§120.32                   California Judges Benchguide                120–22



          c. [§120.32] Confidentiality
     All reports filed with the court are confidential, and any unauthorized
disclosure may result in substantial civil penalties under Welf & I C
§§5328, 5330. Confidential records, however, may be disclosed to the
court, as well as to the Youth Authority and Adult Correctional Agency, as
necessary for the administration of justice. Welf & I C §§5328(f),
5328.02. A district attorney is also allowed access to an individual’s
treatment record information contained in an updated evaluation when that
individual is charged under the Sexually Violent Predators Act (Welf & I
C §§6600–6609.3). Welf & I C §5328.01; Albertson v Superior Court
(2001) 25 C4th 796, 803–804, 107 CR2d 381.
     Confidential information and records may be disclosed to a county
social worker, a probation officer, or any other person who is legally
authorized to have custody or care of a minor, for the purpose of
coordinating health care services and medical treatment. Welf & I C
§5328.04; see CC §56.103.
     Another important exception to the confidentiality of records applies
when a patient, in the opinion of his or her psychotherapist, presents a
serious danger of violence to a reasonably foreseeable potential victim. In
such a case, confidential records or information may be released to the
potential victim and to law enforcement agencies as the psychotherapist
determines is needed for the protection of the potential victim. Welf & I C
§5328(r).
     Welfare and Institutions Code §5328 establishes an absolute
discovery privilege for patient records, subject only to statutory
exceptions. Gilbert v Superior Court (1987) 193 CA3d 161, 169–170, 238
CR 220.
     Any person may bring an action against an individual who has
willfully and knowingly released confidential information or records
concerning the person in violation of these provisions, for damages in the
amount of $10,000 or three times the amount of actual damages sustained,
whichever is greater. Welf & I C §5330(a). Any person may bring an
action against an individual who has negligently released such confidential
information or records for the amount of actual damages sustained plus
$1000. Welf & I C §5330(b). The person may also seek an injunction
against the release of confidential information or records in the same
action in which the person seeks damages. Welf & I C §5330(c). The
plaintiff in such an action is also entitled to recover court costs and
reasonable attorneys’ fees as determined by the court. Welf & I C
§5330(d).
     After 30 years, the trial court clerk may destroy court records in an
LPS case after notice of destruction and if there is no request and order for
transfer of the records. Govt C §68152(c)(7).
120–23                          LPS Proceedings                      §120.34



     If the court considers an ex parte communication (see discussion in
§120.9), it must fully disclose the communications it considered to all
parties and counsel, as well as any response it made. Cal Rules of Ct
7.10(c)(3). The court may find good cause to dispense with this disclosure
requirement if nondisclosure is necessary to protect the conservatee from
harm; it must make written findings in support of the good cause
determination. Cal Rules of Ct 7.10(c)(3). The court must then preserve its
findings and the communication under seal, or otherwise secure their
confidentiality. Cal Rules of Ct 7.10(c)(3).


     3. [§120.33] Criminal Defendant Afflicted With Chronic
                  Alcoholism or Drug Abuse (Welf & I C §§5225-
                  5230)
      A judge may order a 72-hour evaluation for a criminal defendant if
the defendant appears to be a danger to self or others, or gravely disabled,
as a result of chronic alcoholism or because of the use of narcotics or
restricted dangerous drugs, and evaluation services are available in the
county. Welf & I C §5225.

         a. [§120.34] Requirements
     The judge must advise the defendant of the right to continue
immediately with the criminal proceeding or to choose the evaluation
procedure. The judge must also fully apprise the defendant of the option
and of the consequences that will occur if the defendant chooses the
evaluation procedures. Welf & I C §5226. In addition, the defendant has
the right to legal counsel at the proceedings at which the choice is made.
Welf & I C §5226.
     If an evaluation is ordered, the criminal proceedings pending in that
court must be dismissed or suspended until the evaluation and any
subsequent treatment are completed. Welf & I C §5226.1. At completion,
the defendant is returned to court and the criminal proceedings are then
resumed or dismissed. Welf & I C §5226.1. If, during evaluation or
treatment, the defendant is recommended for conservatorship and the
criminal charge has not been previously dismissed, the defendant must be
returned to the court for disposition of the criminal charge before the
conservatorship proceedings are initiated. Welf & I C §5226.1. The judge
may order the defendant detained in the evaluation or treatment facility
until the day set for resumption of the criminal proceedings. Welf & I C
§5226.1
     The order for evaluation must be in substantially the form as set forth
in Welf & I C §5227. A copy of the order must be personally served as
promptly as possible on the person to be evaluated and the professional
§120.35                   California Judges Benchguide               120–24



person in charge of the evaluation and treatment facility named in the
order. Welf & I C §5228.

          b. [§120.35] Disposition
     Under Welf & I C §5230, the defendant may be detained for
evaluation and treatment for no longer than 72 hours, and then:
     • Released to the sheriff’s custody or further detained by a court
       order under Welf & I C §5226.1;
     • Referred for further care and treatment on a voluntary basis,
       subject to the disposition of the criminal action;
     • Certified for 14-day intensive treatment;
     • Recommended for conservatorship, subject to disposition of the
       criminal charge; or
     • Released if the criminal charge has been dismissed.

     4. [§120.36] Administration of Medication
     Persons detained for evaluation and treatment who are receiving
medication for their mental illness must be given written and oral
information about the probable effects and side effects of the medication
as soon as possible after detention. Welf & I C §5152(c). The following
information must be given orally to the patient (Welf & I C §5152(c)):
     • The nature of the mental illness or behavior that is the reason for
       the medication prescribed or recommended;
     • The likelihood of improving or not improving without the
       medication;
     • Reasonable available alternative treatments; and
     • The name, type, frequency, amount, and method of dispensing the
       medication, and the likely duration of taking the medication.
     For a discussion of hearings relating to capacity to refuse medication,
see §§120.49–120.56.

E. 14-Day Hold for Intensive Treatment (Welf & I C §5250)
     1. [§120.37] In General
     A person who has been detained for 72 hours under Welf & I C
§5150, evaluated, and found to be dangerous to self or others, or gravely
disabled, may be certified for 14 days of intensive treatment in an
approved facility if (1) he or she refuses or is unable to accept voluntary
treatment, (2) the facility is capable of providing the required treatment,
and (3) the facility agrees to accept the person. Welf & I C §5250. The
120–25                           LPS Proceedings                       §120.39



purpose of the certification review hearing is to determine whether
probable cause exists to detain the person for intensive treatment. Welf &
I C §5254. Due process requires certification review hearings in every
case; the possibility of habeas review alone is insufficient. Doe v Gallinot
(1981) 657 F2d 1017, 1023–1024.

     2. [§120.38] Notice and Service of Certification
     A notice of certification must be signed by two people: (1) the
professional person in charge of the evaluation facility or his or her
designee, and (2) a physician, licensed psychologist, registered nurse, or
licensed clinical social worker who participated in the evaluation. Welf &
I C §5251. A form of certification is set forth in Welf & I C §5252.
     The notice must be personally served on the person certified and sent
to the person’s attorney or advocate. Welf & I C §5253.

     3. [§120.39] Prehearing Rights of Certified Person;
                  Notification of Family Members
     The person serving the notice must inform the person certified that he
or she is entitled to a certification review hearing to be held within four
days of the date on which the person is certified, unless judicial review is
sought. Welf & I C §5254. The person serving the notice must also inform
the certified person of the right to counsel at the certification review
hearing, including court-appointed counsel under Welf & I C §5276, and
of the right to judicial review by habeas corpus. Welf & I C §5254.1.
     Any person who is held for treatment for more than 72 hours has a
right to counsel, a qualified interpreter, and a hearing before a judge. If the
person is unable to pay for a lawyer, one must be provided free of charge.
See Welf & I C §5157; Phillips v Seely (1974) 43 CA3d 104, 113, 117 CR
863 (legal services at public expense must be afforded in mental health
proceedings if restraint of liberty is possible).
     As soon as practicable after certification, an attorney or patient
advocate must meet with the person certified to discuss the commitment
process and to assist the person in preparing for the certification review
hearing, or to answer questions or otherwise assist the person as
appropriate. Welf & I C §5255. The hearing may be postponed at the
request of the person certified or his or her attorney or advocate for a
period of 48 hours or, in counties with populations of 100,000 or less, until
the next regularly scheduled hearing date. Welf & I C §5256.
     The mental health facility must make reasonable efforts to notify
family members or any other person designated by the patient of the time
and place of the hearing, unless the patient requests that the information
not be provided. Welf & I C §5256.4(c). The facility must also advise the
§120.40                  California Judges Benchguide                120–26



patient of the right not to have this information provided to family
members. Welf & I C §5256.4(c).

     4. [§120.40] Conduct of Hearing
     Under Welf & I C §5256.1, the hearing must be conducted by either a
court-appointed commissioner or referee, or a certification review hearing
officer who must be
     • A state-qualified administrative law hearing officer,
     • A medical doctor,
     • A lawyer,
     • A certified law student, or
     • A registered nurse, licensed psychologist, clinical social worker, or
        marriage and family therapist with a minimum of five years of
        experience in mental health.
Other qualifications for hearing officers are set forth in Welf & I C
§5256.1.
     The hearing must be conducted in an informal and impartial manner.
Welf & I C §5256.4(b). Evidence in support of the certification decision
must be presented by a person designated by the director of the facility. In
addition, either the district attorney or the county counsel may present
evidence. Welf & I C §5256.2. All relevant evidence on the question of
whether the person certified is a danger to self or others, or gravely
disabled due to mental disorder or alcoholism, must be admitted and
considered by the hearing officer. Welf & I C §5256.4(d). The person
conducting the hearing is not bound by judicial rules of procedure and
evidence. Welf & I C §5256.4(b).
   JUDICIAL TIPS:
     • The judicial officer who holds this and other hearings under the
       LPS Act should not hesitate to ask questions, if appropriate, and to
       be more active than bench officers usually permit themselves to be.
     • In an appropriate case, a judge may wish to encourage a
       conservatee to continue with the treatment plan by noting the
       progress the conservatee has made from the time of the previous
       hearing.
    The person conducting the hearing must be advised of any
medication recently taken by the person certified and its probable effects.
Welf & I C §5256.4(a)(5). For a discussion of the right to refuse
medication, see §§120.49–120.54.
120–27                           LPS Proceedings                      §120.44



       5. [§120.41] Location of Hearing
      The hearing must be held in a location compatible with and least
disruptive of the treatment being provided to the person certified. Welf & I
C §5256.1. If the hearing is conducted by a certification review officer, it
must be held at an appropriate place at the facility in which the person
certified is receiving treatment. See Welf & I C §5256.1.

       6. [§120.42] Evidence
     Evidence in support of certification must be presented at the hearing
by the designee of the director of the medical facility and by the district
attorney or county counsel if either so desires. Welf & I C §5256.3.
     A person is not gravely disabled if he or she can survive safely
without involuntary detention with the help of responsible family, friends,
or others who have indicated in writing their willingness and ability to
help provide for the person’s basic personal needs for food, clothing, and
shelter. Welf & I C §5250(d)(1)–(2). The purpose of requiring that the
information be submitted in writing is to avoid the need for family,
friends, and others to state publicly that no one is willing or able to assist
the mentally disordered person in providing for the person’s basic needs.
Welf & I C §5250(d)(3). See §§120.16–120.21 and §§120.76–120.78 for
definitions relevant to finding grave disability.
     Resistance to involuntary commitment, by itself, does not indicate
evidence of a mental disorder, danger to self or others, or grave disability.
Welf & I C §5256.4(e).

       7. [§120.43] Hearing Rights of Certified Person
       At the hearing, the person certified has (Welf & I C §5256.4(a)(1)–
(4))
       • The right to the assistance of an attorney or other advocate,
       • The right to present evidence on his or her behalf and also to
         question persons presenting evidence in support of certification,
         and
       • The right to reasonably request attendance of facility employees at
         the hearing who have knowledge of or who have participated in the
         certification decision.

       8. [§120.44] Ruling After Hearing
     If the hearing officer determines that there is no probable cause to
believe that, as a result of a mental disorder or chronic alcoholism, the
person certified is gravely disabled or a danger to self or others, that
person must be released from involuntary detention, although he or she
may remain at the facility on a voluntary basis. Welf & I C §5256.5. If the
§120.45                  California Judges Benchguide                 120–28



person had been a prisoner referred under Pen C §4011.6, he or she may
be re-imprisoned. See Pen C §4011.6. If there is a finding of no probable
cause, the person may also be given appropriate referral information by
the facility regarding mental health services. Welf & I C §5256.5.
      If a determination is made that there is probable cause to detain the
person certified, the person may be detained for involuntary treatment
under Welf & I C §§5250 and 5270.15 (certification for additional
treatment). See Welf & I C §5256.6.
      At the conclusion of the hearing, the person certified must be given
oral notice of the decision, with written notification given to the attorney
or advocate for the person certified, as well as to the director of the
facility. Welf & I C §5256.7. Written notice must include a statement of
evidence relied on and reasons for the decision. Welf & I C §5256.7. A
copy of the decision and certification made under Welf & I C §5250 or
§5270.15 must be submitted to the superior court. Welf & I C §5256.7.

     9. [§120.45] Disposition After 14-Day Hold
     Under Welf & I C §5257(b), the person certified must be released at
the end of the 14-day period of intensive treatment unless the patient
     • Agrees to accept further treatment on a voluntary basis,
     • Is certified for an additional 14 days of intensive treatment under
       Welf & I C §§5260 et seq (danger to self) (see §120.47),
     • Is certified for an additional 30-day period of intensive treatment
       under Welf & I C §§5270.10 et seq (see §120.48),
     • Is subject to a conservatorship petition filed under Welf & I C
       §5350 or a temporary conservatorship under §5352.1 (see
       §§120.60–120.84), or
     • Is the subject of a Petition for Postcertification of an Imminently
       Dangerous Person for up to 180 days filed under Welf & I C
       §§5300 et seq (danger to others) (see §§120.57–120.59).
      If, during the 14-day treatment period, the psychiatrist directly
responsible for the person’s treatment believes, based on personal
observations, that the person is no longer either a danger to self or others,
or is no longer gravely disabled, the person must be released. Welf & I C
§5257(a).
     If both a psychiatrist and a psychologist have personally evaluated or
examined a person undergoing intensive treatment, and there is a
collaborative treatment relationship between the psychiatrist and the
psychologist, either the psychiatrist or psychologist may authorize the
release of the person, but only after they have consulted with one another.
In the event of a clinical or professional disagreement regarding early
120–29                           LPS Proceedings                      §120.46



release of a person undergoing intensive treatment, the person may not be
released unless the facility’s medical director overrules the decision of the
psychiatrist or psychologist opposing the release. Both the psychiatrist and
psychologist must enter their findings, concerns, or objections into the
person’s medical record. Welf & I C §5257(a).
     If any other professional person who is authorized to release the
person believes the person should be released during the 14-day treatment
period, and the psychiatrist directly responsible for the person’s treatment
objects, the matter must be referred to the medical director of the facility
for a final decision. If the medical director is not a psychiatrist, he or she
must appoint a designee who is a psychiatrist. Welf & I C §5257(a). The
person is not prohibited from remaining at the facility on a voluntary
basis, and the facility may provide the person with appropriate referral
information about mental health services. Welf & I C §5257(a).
     After involuntary detention has begun, the total period of detention,
including any voluntary treatment, must not exceed the maximum period
during which the person could have been involuntarily detained. Welf & I
C §5258. In any event, the involuntary detention period for gravely
disabled persons held under Welf & I C §§5150, 5250, and 5170 must not
exceed 47 days unless a continuance is granted. Welf & I C §5352.3.
     If the person had entered the mental health system through the
criminal justice system under Pen C §4011.6, release may mean re-
imprisonment. See Pen C §4011.6. For general discussion of mental
competency in the criminal context, see California Judges Benchguide 63:
Competence To Stand Trial (Cal CJER).

     10. [§120.46] Immunity for Action by Released Person
      If the provisions of Welf & I C §5257 have been met concerning the
person’s release, then the medical director, his or her designee, the person
in charge of the facility providing intensive treatment, and the psychiatrist
or psychologist responsible for the person’s treatment may not be held
civilly or criminally liable for any action by a person released before or at
the end of the 14-day treatment period. Welf & I C §5259.3(a)–(b). In
addition, the attorney or advocate representing the person, the court-
appointed commissioner or referee, the hearing officer conducting the
certification review hearing, and the peace officer responsible for
detention of the person is not criminally or civilly liable for actions by a
person released at or before the end of the 14-day period. Welf & I C
§5259.3(c).
      Welfare and Institutions Code §5259.3 provides, among other things,
that the person committed may be released only if the psychiatrist in
charge of the person believes, as a result of his or her personal
observations, that the person certified is no longer a danger to others as a
§120.47                   California Judges Benchguide                 120–30



result of a mental disorder. Bragg v Valdez (2003) 111 CA4th 421, 432–
433, 3 CR3d 804. If there is proof that the treating professional based a
release decision on the fact that the person was not insured, rather than on
the fact that the person was no longer a danger, the treating professional is
deprived of immunity under Welf & I C §5259.3; Bragg v Valdez, supra,
111 CA4th at 433.

     11. [§120.47] Additional 14-Day Hold for Suicidal Persons
                   (Welf & I C §5260)
      At the end of the initial 14-day hold, if the detained person continues
to present an imminent threat of suicide because of mental disorder or
chronic alcoholism, a second 14-day period of intensive treatment is
authorized under Welf & I C §5260. This second notice for certification
must be signed by the professional person in charge of the facility. Welf &
I C §5261. Copies of this second notice must be given to the person
certified, his or her attorney, the district attorney, the public defender (if
applicable), and to the facility providing the treatment. Welf & I C §5263.
The notice must include advice of the detained person’s legal right to
judicial review. Welf & I C §5260. At the end of this second 14-day
period, the person must be released unless he or she consents to voluntary
treatment or is recommended for conservatorship under Welf & I C
§§5350–5371 because of grave disability. See Welf & I C §5264(b).
      Further intensive treatment of a person who has been certified to be
gravely disabled may be ordered only under the following conditions
(Welf & I C §5260):
      • The professional facility staff has determined that the person poses
        an imminent threat of suicide;
      • The person has not accepted the voluntary treatment of which he or
        she has been advised;
      • The facility, which can provide treatment, is designated as such by
        the county and is willing to admit the person; and
      • The person has threatened suicide during the period of intensive
        treatment because of his or her mental disorder or chronic
        alcoholism or is detained for evaluation and treatment because of a
        threat of or attempt at suicide.
   JUDICIAL TIP: Judges should be careful of cases in which
    conservatorship is recommended after the end of the second 14-
    day hold if grave disability had not been a basis of the prior
    certifications.
120–31                          LPS Proceedings                       §120.49



     12. [§120.48] Additional 30-Day Period for Intensive
                   Treatment
      In some counties in which the board of supervisors has authorized
further treatment, a person may be detained for intensive treatment for an
additional 30 days if the professional treating staff determines that the
person is still gravely disabled and will not accept voluntary treatment.
Welf & I C §§5270.12, 5270.15. A person detained for this additional
period must be given a certification review hearing in accordance with
Welf & I C §5256 unless judicial review by writ of habeas corpus has
been sought under Welf & I C §5275. Welf & I C §5270.15.
      The purpose of this additional intensive treatment is to reduce the
number of gravely disabled persons for whom conservatorship petitions
are filed, and who are placed under temporary conservatorship simply to
obtain an additional period of treatment when the petitioner does not
believe that a conservator is actually needed and does not intend to
proceed further on the conservatorship petition. Welf & I C §5270.10.
      If it is contemplated that a gravely disabled person may need to be
detained beyond the 14-day period, the professional person in charge of
the treating facility must cause an evaluation to be made, based on the
patient’s current condition and past history, as to whether it appears that
the person is likely to qualify for appointment of a conservator even after a
period of up to 30 days of additional treatment. This evaluation must be
made before proceeding with an additional 30-day certification. If the
appointment of a conservator appears likely, the conservatorship referral
must be made during the 14-day period of intensive treatment. Welf & I C
§5270.55(a). If it appears that with up to 30 days of additional treatment
the appointment of a conservator will not be necessary, the person may be
certified for the additional 30-day period. Welf & I C §5270.55(b).
      If a conservatorship referral has not been made during the 14-day
period and, during the 30-day period, it appears that the person is likely to
require the appointment of a conservator, a conservatorship referral must
be made to allow sufficient time for a conservatorship investigation and
other related procedures. If a temporary conservatorship is obtained, it
must run concurrently with the 30-day certification period. The
conservatorship hearing must be held by the end of that period. Welf & I
C §5270.55(c).

F. Medications and Medical Procedures
     1. [§120.49] Antipsychotic Medication
     A detained person has the right to refuse treatment with antipsychotic
medications, which are defined as medications customarily prescribed for
the treatment of psychoses or other severe mental or emotional disorders
(Welf & I C §5008(l)). Welf & I C §5325.2. See also Welf & I C §§5150,
§120.50                  California Judges Benchguide                120–32



5250, 5260, 5270.15. Thus, antipsychotic medications, customarily
prescribed for the treatment of psychoses or other severe mental or
emotional disorders (Welf & I C §5008(l)) may not be administered in
nonemergency situations without the patient’s consent unless there has
been a judicial determination of incapacity. Welf & I C §5332; Riese v St.
Mary’s Hosp. & Med. Ctr. (1987) 209 CA3d 1303, 1320, 271 CR 199. See
also Welf & I C §5331 (no presumption of incapacity solely because of
voluntary or involuntary treatment for mental disorder or alcoholism).
      In an emergency situation (treatment necessary to preserve life or
prevent serious harm when it is impracticable to obtain consent (Welf & I
C §5008(m)), a detained person may be treated with antipsychotic drugs
over his or her objection before a capacity hearing is held. Welf & I C
§5332(e). See §120.53. Emergency treatment must be limited to
medication required to treat the emergency condition and only in the
manner least restrictive to the patient’s personal liberty. Welf & I C
§5332(d); see Heater v Southwood Psychiatric Ctr. (1996) 42 CA4th
1068, 1081, 49 CR2d 880 (administration of tranquilizer to person on 72-
hour hold was authorized as practical measure to protect patient when he
was struggling and highly agitated, and there was no evidence that
medication was antipsychotic drug). It is not necessary that harm has
occurred or has become unavoidable before intervention may take place.
Welf & I C §5332(e).
      The agency or facility providing the treatment must obtain the
patient’s medication history, if possible. Welf & I C §5332(d).
      The requirement that there be a judicial determination of incapacity
under the LPS statutory scheme before subjection to involuntary
administration of psychotropic medication extends to prisoners. Keyhea v
Rushen (1986) 178 CA3d 526, 542, 223 CR 726. But see In re Locks
(2000) 79 CA4th 890, 894–897, 94 CR2d 495 (inmate who has had
judicial hearing under Pen C §1026 and was found not guilty by reason of
insanity, and who was committed to state hospital for treatment, is not
entitled to hearing to determine whether he or she is competent to refuse to
take psychotropic medication; inmate’s only judicial remedy is to seek
determination that he or she is not danger to others under Pen C §1026.2),
criticized by In re Qawi (2004) 32 C4th 1, 26–27, 7 CR3d 780 (refusing to
decide whether result in Locks was correct as beyond scope of case). The
LPS Act’s requirement of a judicial determination of incapacity also
applies to prisoners determined to be mentally disordered offenders under
the Mentally Disordered Offender Act (MDO Act), Pen C §§2960 et seq.
In re Qawi, supra, 32 C4th at 24–25.

          a. [§120.50] Capacity (Riese) Hearing
     If a patient refuses antipsychotic medication and the medical staff has
determined that treatment alternatives to involuntary medication are
120–33                           LPS Proceedings                      §120.51



unlikely to meet his or her needs, the medication may be administered
only after a hearing and determination that the person is incapable of
refusing treatment. Welf & I C §5332(b). This hearing, which is called a
capacity or Riese hearing, is triggered by a petition filed in superior court
by the director of the treatment center or his or her designee. Welf & I C
§5333(c).
      Once the petition has been filed, the hearing must be held within 24
hours of that filing whenever possible. Welf & I C §5334(a). Although
hearings may be postponed for hardship or because a party needs
additional time to prepare, they may not be postponed beyond 72 hours
from the filing of the petition. Welf & I C §5334(a). The hearings must be
held at the treatment facility and must be conducted by a superior court
judge or a court-appointed commissioner, referee, or hearing officer. Welf
& I C §5334(b)–(c) (judicial or hearing officer must be appointed from list
of attorneys).
   JUDICIAL TIPS:
     • At the hearing, it may be appropriate for the judge to question the
       doctor concerning the effect of medications and whether there are
       alternative drugs available.
     • Judicial officers should learn as much as they can about the
       different types of medications and their side effects. Although
       judges should not try to second guess doctors, they should at least
       be aware of alternatives. In addition, judges should be aware that
       what seems like symptoms of a mental disorder (shuffling gait,
       slurred speech, tremors, spasms, and falling asleep) might instead
       be the side effect of a medication.

         b. [§120.51] Findings
    The court must determine the patient’s capacity to consent, focusing
on whether the patient
    • Is aware of his or her situation;
    • Is able to understand the risks, benefits, and alternatives to the
      proposed treatment; and
    • Is able to understand and knowingly and intelligently evaluate the
      information that is required to be given when informed consent is
      sought and to otherwise use rational thought processes to
      participate in the treatment decision.
    Riese v St. Mary’s Hosp. & Med. Ctr. (1987) 209 CA3d 1303, 1322–
1323, 271 CR 199. See also Welf & I C §5326.5 (definition of informed
consent).
§120.52                   California Judges Benchguide               120–34



     The court must make a finding of incapacity by clear and convincing
evidence. 209 CA3d at 1322. In making its decision, the court must not
decide medical questions, such as whether the proposed treatment is
necessary or the least drastic alternative. 209 CA3d at 1322.

          c. [§120.52] Notification
     The patient must be given verbal notification of the results of the
capacity hearing at the conclusion of the hearing. Welf & I C §5334(d).
This must be followed by written notice to both the patient and his or her
advocate or attorney and the director of the mental health facility. Welf &
I C §5334(d). A copy of the determination must be submitted to the
superior court. Welf & I C §5334(d).

          d. [§120.53] Effect of Determination
     If the court finds that the patient has the capacity to give informed
consent to antipsychotic drugs, the patient may refuse consent to the
drugs. Riese v St. Mary’s Hosp. & Med. Ctr. (1987) 209 CA3d 1303,
1323, 271 CR 199. If the court finds that the patient is incapable of giving
informed consent, one of two things may happen under Riese v St. Mary’s
Hosp. & Med. Ctr., supra:
     • When the confinement will be for fewer than 14 days under Welf
        & I C §5150 or §5250, the patient may be required to take the
        medication with no further consents.
     • When confinement will be for more than 14 days, the patient is
        required to take the medication only after a guardian, responsible
        relative, or conservator gives consent.
     Any determination of incapacity to refuse treatment remains in effect
only until the earliest of the following events occurs:
     • The detention period under Welf & I C §§5150 and/or 5250 comes
       to an end,
     • Capacity has been restored according to standards developed under
       Welf & I C §5332(c), or
     • Capacity has been restored according to court determination. Welf
       & I C §5336.
   JUDICIAL TIPS:
     • If there is a new holding period, a new capacity hearing must be
       held.
     • If incapacity is found, judges should consider including orders for
       testing blood levels of medication in their orders to monitor the
120–35                           LPS Proceedings                       §120.55



         effects of medication and to rule out pregnancy or other conditions
         for which medication might be contraindicated.

         e. [§120.54] Appeals
      The patient may appeal the determination of capacity to the superior
court or the court of appeal (Welf & I C §5334(e)(1)), or he or she may
file a writ of habeas corpus (Welf & I C §5334(e)(4)). The person who
filed the original petition (usually the treating psychiatrist) may request the
county counsel or district attorney to appeal the determination to the
superior court or the court of appeal on behalf of the state. Welf & I C
§5334(e)(2). Appeals to the superior court (often to a judicial officer when
the original hearing was heard by a hearing officer) are subject to de novo
review. Welf & I C §5334(f).

     2. [§120.55] Electroconvulsive Therapy
      If a patient’s doctor or attorney believes that the patient does not have
the capacity to give informed written consent to necessary shock
treatments, that person must file a petition in superior court for an
evidentiary hearing on the patient’s capacity to give written informed
consent. Welf & I C §5326.7(f). The hearing must be held within three
judicial days after the petition is filed. Welf & I C §5326.7(f). The court
must provide appropriate notice to the patient, who must be present at the
hearing and must be represented by counsel. Welf & I C §5326.7(f). See
Conservatorship of Pamela J. (2005) 133 CA4th 807, 823–826, 35 CR3d
228 (trial court reversibly erred in determining conservatee’s capacity to
give informed consent to electroconvulsive treatment in her absence after
refusing her counsel’s requests to grant continuance to obtain her presence
or to conduct hearing at location where she was detained). If the patient’s
attorney is the one who filed the petition or is one whom the court
otherwise determines to have a conflict of interest with the patient, that
attorney must not represent the patient at the hearing. See Welf & I C
§5326.7(f).
      At the hearing, the court must determine whether the patient is able to
understand and to knowingly and intelligently act on information related
to the electroconvulsive therapy. Welf & I C §5326.5(c). The
determination that the patient does not have the required capacity must be
made by clear and convincing evidence. Lillian F. v Superior Court
(1984) 160 CA3d 314, 324, 206 CR 603.
      In making this determination, the court should focus primarily on the
same three factors assessed in capacity hearings in the drug treatment
setting: (1) whether the patient is aware of his or her situation; (2) whether
the patient is able to understand the benefits and risks of, as well as
alternatives to, the proposed intervention; and (3) whether the patient is
§120.56                  California Judges Benchguide                 120–36



able to understand and to knowingly and intelligently evaluate the
information required to be given patients whose informed consent is
sought and to otherwise participate in the treatment decision through
rational thought processes. Conservatorship of Pamela J., supra, 133
CA4th at 824, citing Riese v St. Mary’s Hosp. & Med. Ctr. (1987) 209
CA3d 1303, 1322–1323, 271 CR 199; see §120.54. In addition, the court
must consider medical evidence regarding the patient’s condition and
prognosis as it relates to capacity to consent in making this determination;
the court must not consider whether electroconvulsive therapy is definitely
needed or is the least drastic alternative available. Conservatorship of
Waltz (1986) 180 CA3d 722, 728, 227 CR 436.
     If the court determines that the patient does not have the capacity to
provide informed written consent, electroconvulsive therapy may be
performed after obtaining consent from a conservator, guardian, or
responsible relative. Welf & I C §5326.7(g).
   JUDICIAL TIP: Some judges recommend that the court consider
    imposing limits on the number of treatments. It is also
    recommended that the conservator be present at the capacity
    hearing so that he or she will have heard all the information
    provided by doctors and the conservatee and his or her attorney or
    advocate concerning the risks and benefits of this kind of therapy.

     3. [§120.56] Other Types of Treatment
     Psychosurgery may be performed only with the patient’s written
consent and after other stringent safeguards have been met. See Welf & I
C §5326.6. A conservator who does not have express authority to require
medical treatment unrelated to the mental disorder may seek a court order
for that treatment under Welf & I C §5358.2. If the conservatee contests
the request for the order, the court must hold a hearing on the request.
Welf & I C §5358.2.

G. 180-Day Postcertification Treatment for Person Determined To
   Be Danger to Others
     1. [§120.57] Requirements
     A person presenting a demonstrated danger of inflicting substantial
physical harm on others as a result of a mental disorder or defect may be
confined for up to 180 days of additional treatment after expiration of the
14-day period of intensive treatment. Welf & I C §5300. A petition for
postcertification treatment must be filed in the superior court of the county
in which the facility providing treatment is located. Welf & I C §5301.
The format of the petition is mandated by Welf & I C §5301. The petition
must summarize the facts supporting the contention of harm and be
120–37                            LPS Proceedings                       §120.59



accompanied by supporting affidavits or declarations describing in detail
the behavior that supports the contention that the person falls within the
standard set forth in Welf & I C §5300. The petition and supporting papers
must be served on the person on the same day they are filed. Welf & I C
§5301.
     The hearing must begin within four judicial days after the petition is
filed or, if a jury trial is demanded, within ten judicial days. Welf & I C
§5303. Continuances may be for a maximum of ten additional days. Welf
& I C §5303. The person is entitled to be represented by counsel who must
explain his or her rights to the person in relation to the proceeding. Welf &
I C §5302. The person also has the right to a jury trial and a unanimous
jury verdict. Welf & I C §§5302–5303. But the person generally has no
fifth amendment right to refuse to testify. Conservatorship of Bones
(1987) 189 CA3d 1010, 1017, 234 CR 724.

     2. [§120.58] Findings
     Under Welf & I C §5304(a), the court must find that the patient
presents a demonstrated danger of inflicting substantial physical harm
because of a mental disorder and must also find that the patient has:
     • Attempted, inflicted, or threatened substantial physical harm after
       having been taken into custody (Welf & I C §5304(a)(1));
     • Attempted or inflicted physical harm, resulting in his or her being
       taken into custody (Welf & I C §5304(a)(2)); or
     • Seriously threatened substantial physical harm up to seven days
       before being taken into custody, that threat having at least in part
       resulted in being taken into custody (Welf & I C §5304(a)(3)).
   JUDICIAL TIP: Many judges make the finding of dangerousness
    to others under Welf & I C §5300 by proof beyond a reasonable
    doubt because the person will be subject to confinement. See
    generally Conservatorship of Roulet (1979) 23 C3d 219, 235, 152
    CR 424 (in establishing LPS conservatorship, finding of grave
    disability must be by proof beyond reasonable doubt).

     3. [§120.59] Subsequent Petitions
      The individual can be held for one 180-day period only, unless the
district attorney or county counsel files a new petition for postcertification
treatment on the grounds that the hospitalized person attempted, inflicted,
or made a substantial threat of physical harm to another during the 180-
day period. Welf & I C §5304(b).
      Failure to file a timely petition for an extension beyond the 14-day
period under Welf & I C §5300 will result in the release of the committed
person, not dismissal of the petition; there is no bar to filing a late petition
§120.60                  California Judges Benchguide                120–38



as long as the person has a right to release. People v Superior Court
(Finch) (1988) 200 CA3d 1546, 1551, 248 CR 23. The time is computed
by the method provided in CCP §12, excluding the first day and including
the last day, unless it is a holiday. 200 CA3d at 1551.

H. Conservatorship for Gravely Disabled Persons
     1. [§120.60] Grounds for Appointment of Conservator (Welf
                  & I C §5350)
     A conservator of the person, the estate, or both may be appointed for
anyone who is gravely disabled as a result of mental disorder or
impairment by chronic alcoholism and who is unwilling to accept or
incapable of accepting voluntary treatment. Welf & I C §5350. Grave
disability must be found beyond a reasonable doubt. See Conservatorship
of Roulet (1979) 23 C3d 219, 235, 152 CR 424; §120.79.

     2. [§120.61] Appointment of Conservator for Minor
     A minor who is gravely disabled may also be subject to
conservatorship proceedings. Welf & I C §5350(a). If the minor is a ward
of the court under Welf & I C §602, the juvenile court may retain
jurisdiction over that minor during the pendency of the LPS proceedings;
however, if the minor is detained in a mental health facility as a result of
the LPS proceedings and the person in charge of the facility determines
that continuing the delinquency process would be harmful, the juvenile
court should temporarily suspend its jurisdiction. In re Patrick H. (1997)
54 CA4th 1346, 1359, 63 CR2d 455. In some counties, the same process
applies to dependent minors.

     3. [§120.62] General Procedures; Comparison With Probate
                  Code Conservatorships
     Because a conservatorship under the grave disability provisions of
the LPS Act threatens a massive curtailment of the conservatee’s liberty
and personal autonomy, strict compliance with the statutory procedures
designed to protect the conservatee is required. Edward W. v Lamkins
(2002) 99 CA4th 516, 531, 533–534, 122 CR2d 1. Under Welf & I C
§5350, the procedure for establishing, administering, and terminating an
LPS conservatorship is the same as that provided in the Guardianship-
Conservatorship Law, Prob C §§1400–3925 (In re Conservatorship of
Martha P. (2004) 117 CA4th 857, 867–868, 12 CR3d 142), with the
following exceptions:
(1) The proposed conservatee can demand a court or jury trial on the
     issue of grave disability. Welf & I C §5350(d).
(2) LPS conservatorship proceedings can be initiated only on
     recommendation of the professional person in charge of the treatment
120–39                              LPS Proceedings                       §120.62



     facility, and the officer providing conservatorship investigation is the
     only party who may petition to establish the conservatorship. Welf &
     I C §5352.
     Other differences are shown in the following table:
LPS Conservatorship                       Probate Code Conservatorship
Mental disorder required. Welf & I        No mental disorder required. See
C §5350.                                  Prob C §1801(a) (must be unable to
                                          provide for personal needs or
                                          manage financial resources).
Purpose is to treat disorder. See         Purposes are to protect
generally Welf & I C §5358.               conservatee’s rights, provide for
                                          assessment, meet health and
                                          psychosocial needs, etc. Prob C
                                          §1800.
Conservator may place conservatee         There is no similar option. But see
in locked mental health facility. See     Prob C §2356.5 (probate
Welf & I C §5358(a), (c).                 conservator may place person with
                                          dementia in locked facility after
                                          obtaining court order).
One-year duration. Welf & I C             Indefinite duration. See Prob C
§5361.                                    §1860.
Minors may be conservatees. Welf          Minors may not be conservatees.
& I C §5350(a).                           Prob C §1800.3 (exception for
                                          married or formerly married
                                          minors).
Burden of proof of grave disability:      Burden of proof: Clear and
Beyond reasonable doubt.                  convincing evidence. Prob C
Conservatorship of Roulet (1979)          §1801(e).
23 C3d 219, 235, 152 CR 424.
Appointment of conservator may            Appointment of conservator is
not be subject to list of priorities in   subject to list of priorities in Prob C
Prob C §1812 if investigator              §1812(b) (i.e., spouse, domestic
recommends otherwise to the court.        partner, adult child, parent, etc.).
Welf & I C §5350(b)(1). In
appointing LPS conservator, court
must consider protection of public
as well as treatment of conservatee.
Welf & I C §5350(b)(2).
§120.63                   California Judges Benchguide                  120–40



LPS Conservatorship                      Probate Code Conservatorship
No LPS conservatorship of estate         Probate conservatorship of estate is
when there is probate conservator-       permitted even when there is LPS
ship of estate. Welf & I C §5350(c).     conservatorship of person. See Welf
If Probate Code conservatorship of       & I C §5350(c).
person already exists, LPS
conservatorship runs concurrently
and is superior to probate
conservatorship. Welf & I C
§5350(c). Notice of LPS
proceedings must be given to
Probate Code guardian or
conservator. Welf & I C §5350(g).

     4. [§120.63] Initiation of Proceedings
      LPS conservatorship proceedings for an involuntary detainee are
initiated when the person in charge of the facility providing evaluation or
treatment recommends conservatorship to the officer providing
conservatorship investigation in the county in which the detainee resided
before admission. Welf & I C §5352. In the case of a person not
involuntarily detained, the professional person in charge of any agency
providing evaluation or treatment services may recommend
conservatorship under Welf & I C §5352 when the professional person or
designee has
      • Examined and evaluated the person and determined that the person
        is gravely disabled, and
      • Determined that future examination on an inpatient basis is not
        necessary for a determination that the person is gravely disabled.
      If the investigator concurs with the recommendation, he or she must
petition the superior court in the county of residence of the patient to
establish conservatorship. Welf & I C §5352. The county investigator is
the only person authorized to initiate LPS conservatorship proceedings.
Kaplan v Superior Court (1989) 216 CA3d 1354, 1360–1361, 265 CR 408
(improper for spouse of proposed conservatee to file petition after public
guardian refused to do so). If a court refers a criminal defendant for
initiation of conservatorship under Pen C §1370 (see discussion in
§120.20), the public conservator, in his or her role as conservatorship
investigator, is required to investigate the matter and retains full discretion
as to whether to file a petition for conservatorship. People v Karriker
(2007) 149 CA4th 763, 777-778, 57 CR3d 412.
120–41                          LPS Proceedings                       §120.65



     5. [§120.64] Service and Notice
      The LPS Act does not expressly describe the requirements for notice
to a proposed conservatee, but does provide that, with specified
exceptions, the procedure for establishing a conservatorship under the Act
is the same as that provided in Prob C §§1400–3925. Welf & I C §5350;
Edward W. v Lamkins (2002) 99 CA4th 516, 526, 122 CR2d 1. The
Probate Code requires that a proposed conservatee be served with notice
of the petition at least 15 days before the hearing on the petition. Prob C
§§1822–1824.
      The conservatorship investigation report must be mailed directly to
the proposed conservatee as well as to his or her attorney. Conservatorship
of Ivey (1986) 186 CA3d 1559, 1566, 231 CR 376. But the failure to serve
the conservatorship investigation report along with the petition and
citation does not deprive the court of jurisdiction. Conservatorship of
Isaac O. (1987) 190 CA3d 50, 54, 235 CR 133.
      If there is no prior relationship between the proposed conservator and
conservatee, and the proposed conservator is not nominated by a family
member, friend, or other person with a relationship to the proposed
conservatee, notice must be mailed to the public guardian of the county in
which the petition is filed. Prob C §1822(f).
      Notice must also generally be mailed to the spouse or domestic
partner, and to family members. See Prob C §1822(b). Family members,
however, need not be notified if the proposed conservatee requests no
notification and the proposed conservator is not a family member.
Otherwise the county mental health program must make reasonable
attempts to notify family members and others designated by the proposed
conservatee. Welf & I C §5350.2.
      A proposed conservatee is entitled to notice of any application for a
temporary conservatorship in accordance with Prob C §2250(e). Edward
W. v Lamkins, supra, 99 CA4th at 541–545 (notice may be dispensed with
only on showing of good cause, i.e., individualized showing of exigent
circumstances). See §120.64.
      An affidavit of service is sufficient to prove personal service.
Conservatorship of Forsythe (1987) 192 CA3d 1406, 1410–1411, 238 CR
77.

     6. [§120.65] Temporary Conservatorship
      When temporary conservatorship is indicated, the fact must be
alternatively pleaded in the petition. Welf & I C §5352. On or after the
filing of a petition for appointment of a conservator, any person entitled to
petition for appointment of the conservator may file a petition for
appointment of a temporary conservator of the person or estate or both.
Prob C §2250.2.
§120.65                  California Judges Benchguide                 120–42



     If the court is satisfied that the temporary conservatorship is needed
based on the comprehensive report of the officer conducting the
investigation or the affidavit of the professional person who recommended
the conservatorship, it may appoint a temporary conservator for up to 30
days. Welf & I C §5352.1(a). Either the officer conducting the
investigation or another person designated by the county must act as the
temporary conservator. Welf & I C §5352.
   JUDICIAL TIP: Because 30 days may elapse between the date
    the petition for conservatorship is filed and the date a conservator
    is appointed (see Welf & I C §5365), appointment of a temporary
    conservator is sometimes used to exercise the authority to detain
    the patient beyond the statutory period for intensive treatment. If
    the proposed conservatee’s condition improves sufficiently that
    he or she may be released, the temporary conservatorship may be
    terminated before the petition is heard.
     If the proposed conservatee demands a trial on the issue of whether
he or she is gravely disabled, the court may extend the temporary
conservatorship until the date of disposition of the issue by trial, provided
that the extension does not exceed a period of six months. Welf & I C
§5352.1(c).
     When a temporary conservatorship is sought, the proposed
conservatee must be given at least five days’ notice of the proposed
appointment, unless the court, for good cause, orders otherwise. Prob C
§2250.2(c). Good cause for purposes of waiving the five-day notice
requires an individualized showing of exigent circumstances in a
particular case. A blanket statement of reasons offered as a matter of
routine policy does not constitute good cause. Edward W. v Lamkins
(2002) 99 CA4th 516, 529, 541–545, 122 CR2d 1.
     Thus, a public guardian’s practice of requesting a waiver of this
notice in all applications for temporary conservatorships was held to
violate the potential conservatees’ right to notice and right to due process.
99 CA4th at 529, 543–545. The appointment of a temporary conservator
affects a conservatee’s liberty, personal autonomy, and dignitary interests
in receiving notice and an opportunity to be heard. 99 CA4th at 530, 533–
535, 538–539. There is also a substantial risk of erroneous ex parte
decision making in the mental health context. When a temporary
conservatorship is established without notice to the proposed conservatee,
the court will often be acting on incomplete information, because the
proposed conservatee is given no opportunity to present his or her side of
the story. 99 CA4th at 535–536. Finally, the costs associated with
providing notice in most cases are minimal. 99 CA4th at 544.
120–43                           LPS Proceedings                      §120.68



         a. [§120.66] Powers of Temporary Conservator
     The powers of the temporary conservator are those delineated in the
court order of appointment, but in no event are they to be broader than
those granted a permanent conservator. Welf & I C §5353. Generally,
under Welf & I C §5353, a temporary conservator must:
     • Provide arrangements for food, shelter, and care pending the
       determination of conservatorship; and
     • Give preference to arrangements permitting the person to return
       home or stay with family or friends; or
     • Require the person to be detained in a facility providing intensive
       treatment or other state-licensed facility.
      The court must order the temporary conservator to take reasonable
measures to preserve the status quo with respect to the conservatee’s place
of residence. Welf & I C §5353. The temporary conservator may not sell
or relinquish any real or personal property interest on the part of the
conservatee unless the court finds (by a preponderance of the evidence)
that failure to do so would cause irreparable harm to the conservatee. Welf
& I C §5353 (e.g., property is vacant and fire insurance cannot be
obtained).

         b. [§120.67] Review by Habeas Corpus
     A conservatee held in a treatment facility under the authority of a
temporary conservatorship may seek review by habeas corpus, under the
procedures set forth in Welf & I C §§5275–5278. Welf & I C §5353. The
county or government agency has the burden of proving by a
preponderance of the evidence the legality of a detention without any
presumption of regularity; the standard of proof ensures that society’s
interests in public safety and in the concept of parens patriae are protected.
In re Lois M. (1989) 214 CA3d 1036, 1041, 263 CR 100. For discussion
of habeas corpus, see §§120.89–120.93.

         c. [§120.68] Additional Detention Period Pending Petition
                      for Temporary Conservatorship
     The proposed conservatee may be detained in a treatment facility for
not more than three days beyond the designated period for intensive
treatment (see §§120.37–120.48 for discussion of detention for intensive
treatment) if the additional time is necessary for filing a petition for and
establishing a temporary conservatorship. Welf & I C §5352.3. Unless
there has been a continuance, there is a 47-day limit for involuntary
detention under Welf & I C §§5150, 5250, and 5170. Welf & I C §5352.3.
§120.69                  California Judges Benchguide                 120–44



          d. [§120.69] Expiration of Temporary Conservatorship
     The temporary conservatorship automatically expires in 30 days,
unless the court conducts a hearing on whether the person is gravely
disabled within the meaning of Welf & I C §5008(h) before the 30-day
period expires. Welf & I C §5352.1(b). But if the person demands a court
or jury trial on the petition for conservatorship, the temporary
conservatorship may be extended until the court disposes of the issue, but
in no event may the extension exceed six months. Welf & I C §5352.1.

     7. [§120.70] Hearing/Trial
       The proposed conservatee has a right to a hearing on the issue of
grave disability. See Welf & I C §5365 (hearing must be held on all
petitions within 30 days). In addition, he or she may demand either a court
or jury trial on the issue of grave disability instead of or after a hearing.
Welf & I C §5350(d); Conservatorship of Manton (1985) 39 C3d 645,
651–652, 217 CR 253.
       The court is required to conduct an on-the-record voir dire of the
proposed conservatee regarding the nature of the proceeding and the effect
of the proceeding on a convervatee’s basic rights. Prob C §1828;
Conservatorship of Christopher A. (2006) 139 CA4th 604, 611, 43 CR3d
427. A court may not accept a stipulated judgment on issues such as the
proper placement of the conservatee, the disabilities to impose, and the
duties and powers of the conservator without first consulting the
conservatee and obtaining on the record the conservatee's express consent.
Conservatorship of Christopher A., supra.
       The proposed LPS conservatee must be notified of the right to a jury
trial. Conservatorship of Benvenuto (1986) 180 CA3d 1030, 1038, 226 CR
33. The demand for a trial must be made within five days following the
hearing on the petition, and if made before the date the petition is heard,
the demand constitutes a waiver of the hearing. Welf & I C §5350(d). The
deadline for requesting a jury trial is mandatory and the court may not
adopt procedures that attempt to preserve the right to trial beyond those
deadlines. Conservatorship of Kevin M. (1996) 49 CA4th 79, 93, 56 CR2d
765.
       Once the demand for a court or jury trial has been made, the trial
must begin within ten days unless the proposed conservatee requests a
continuance; in that case, the court must continue the trial date for not
more than 15 days. Welf & I C §5350(d). The same procedures apply in
subsequent proceedings to reestablish conservatorship. Welf & I C
§5350(d); see §120.88. A trial delayed because of circumstances beyond
anyone’s control will not divest the court of jurisdiction. Conservatorship
of James M. (1994) 30 CA4th 293, 299, 35 CR2d 567 (Welf & I C
§5350(d) is directory not mandatory).
120–45                          LPS Proceedings                       §120.72



     Waiver of a jury trial may be made by counsel or by the proposed
conservatee; this waiver may be made orally in open court and then must
be entered in the minutes or docket. Conservatorship of Isaac O. (1987)
190 CA3d 50, 56, 235 CR 133.
   JUDICIAL TIP: The hearing or trial needs to have as much
    formality and dignity as possible even if it is held in a room in a
    local mental health facility, as is often the case. The room should
    have all the trappings of a courtroom, such as a flag, and the
    judge should wear a robe.

         a. [§120.71] Time and Place
      A hearing must be held on a petition to establish a conservatorship
within 30 days after the date of the petition. Welf & I C §5365. The
hearing may be held whenever and wherever the parties agree. Welf & I C
§5118. In practice, hearings are often held at state- or county-designated
mental health facilities, with the public excluded. A party may, however,
demand that the hearing be held in the same location as civil actions and
that it be public. Welf & I C §5118.

         b. [§120.72] Appointment of Counsel
      The court is required to appoint the public defender or other attorney
for the proposed conservatee within five days after the date of the petition.
Welf & I C §5365. The court must also give notice to the proposed
conservatee that it may, after the hearing, require the conservatee to pay
his or her attorney fees after determining ability to pay. Conservatorship
of Rand (1996) 49 CA4th 835, 839–840, 57 CR2d 119; see Pen C
§987.8(f). In determining ability to pay, the court must consider the factors
listed in Pen C §987.8(g)(2). 49 CA4th at 841.
      This right to counsel is a statutory right to effective assistance of
counsel, and not a Sixth Amendment constitutional right to counsel,
because LPS proceedings are civil in nature, not criminal
(Conservatorship of Estate of David L. (2008) 164 CA4th 701, 710, 79
CR3d 530). Because a prospective conservatee has this statutory right to
effective assistance of counsel, he or she must be provided a Marsden
hearing upon request for substitute counsel. 164 CA4th at 711.
      A proposed conservatee does not have a constitutional or a statutory
right to represent himself or herself at civil commitment proceedings
under the LPS Act. Conservatorship of Joel E. (2005) 132 CA4th 429, 33
CR3d 704. The judge does have discretion to permit a prospective
conservatee to represent himself or herself in civil commitment hearings.
Conservatorship of Joel E., supra, 132 CA4th at 441. However, the
complexity of the case and the proposed conservatee’s condition may
§120.73                  California Judges Benchguide                120–46



properly limit the exercise of such discretion. See 132 CA4th at 441
(judge properly refused to allow proposed conservatee to represent himself
when investigation report stated that he had “paranoid ideations,” the
judge noted that he lacked coherence at times in court, and the judge
expressed concern that jury would “translate that into the notion that he’s
gravely disabled”).
   JUDICIAL TIP: When appointing counsel, some judges include
    an order granting counsel the right to review medical records of
    the proposed conservatee. Without such an order, counsel might
    not have access to the records if, as is often the case, the
    conservatee is distrustful and therefore unwilling to sign any
    document providing for access.
    In an appeal of a conservatorship, the conservatee is also entitled to
appointed counsel. Conservatorship of Ben C. (2007) 40 C4th 529, 542,
53 CR3d 856.

          c. [§120.73] Attendance at Hearing
     The proposed conservatee is required to attend the hearing, unless he
or she (see Prob C §1825):
     • Is out of state,
     • Is medically unable to attend, or
     • Does not object to the conservatorship and does not wish to attend.
Waiver of appearance by the attorney and proposed conservatee acts as a
concession that facts will not be contested and that the conservatee does
not oppose conservatorship. Conservatorship of Pollock (1989) 208 CA3d
1406, 1413, 257 CR 14.
     If the proposed conservatee attends the hearing, he or she may not be
shackled unless the court follows the procedures set out in People v Duran
(1976) 16 C3d 282, 288–291, 127 CR2d 618 (person must be unrestrained
when appearing before jury unless there is a manifest need; when
restraints must be used, they must be as unobtrusive as possible).
Conservatorship of Warrack (1992) 11 CA4th 641, 647, 14 CR2d 99. In
addition, when a potential conservatee appears in visible restraints, he or
she is entitled to a cautionary instruction that the restraints are not
evidence of the person’s disability and the jury should not speculate on the
reasons for the restraints. 11 CA4th at 648.

     8. [§120.74] Evidence
    The historical course of the proposed conservatee’s mental disorder
must be considered if it has a direct bearing on the determination of
whether the person is gravely disabled. Welf & I C §5008.2(a). The
120–47                           LPS Proceedings                      §120.75



historical course includes evidence presented by those who have provided
mental health or related support services to the patient, the patient’s
medical and psychiatric records presented to the court, or evidence
presented voluntarily by family members, the patient, or any other person
designated by the patient. Welf & I C §5008.2(a). The court may exclude
evidence deemed irrelevant because of remoteness of time or dissimilarity
of circumstances. Welf & I C §5008.2(a). These provisions do not limit
the application of Welf & I C §5328 (confidentiality of information and
records) (see §120.32) or the patient’s right to respond to evidence
presented to the court. Welf & I C §5008.2(b).
     The party seeking imposition of the conservatorship must prove the
proposed conservatee’s grave disability beyond a reasonable doubt, and
the verdict must be issued by a unanimous jury. Conservatorship of Ben C.
(2007) 40 C4th 529, 541, 53 CR3d 856.
     A finding that the proposed conservatee is unable or unwilling to
accept treatment is not required to establish an LPS conservatorship.
Conservatorship of Symington (1989) 209 CA3d 1464, 1469, 257 CR 850.
     Expert testimony on the relationship between the mental disorder and
the proposed conservatee’s inability to care for himself or herself may be
based on hearsay. Conservatorship of Torres (1986) 180 CA3d 1159,
1162, 226 CR 142. The trier of fact is not bound by expert testimony
regarding an alleged conservatee’s abilities as long as the trier of fact does
not act arbitrarily. Conservatorship of Amanda B. (2007) 149 CA4th 342,
350, 56 CR3d 901.
     The exclusionary rule for fourth amendment violations is not
applicable in a trial of a proposed conservatee’s grave disability under the
LPS Act. Conservatorship of Susan T. (1994) 8 C4th 1005, 1008, 36
CR2d 40.

         a. [§120.75] Investigation Report Not Admissible at Trial
      Although the conservatorship investigation report is required to be
filed with the court before a hearing to appoint a conservator (see Welf & I
C §5354), it is not admissible at a contested jury trial on the issue of grave
disability to the extent it contains inadmissible hearsay. Conservatorship
of Manton (1985) 39 C3d 645, 652, 217 CR 253.
   JUDICIAL TIP: Judges will often read these reports as
    background. They are not a substitute for evidence, however, and
    findings may not be based solely on allegations contained in
    them. On the other hand, some judges choose not to read the
    report if there is a hearing or trial in which live testimony is
    presented on the issues covered in the report.
§120.76                   California Judges Benchguide                 120–48



          b. [§120.76] Bizarre Behavior and Mental Disorder Not
                       Same as Grave Disability
     When a proposed conservatee is not incapacitated, does not show
signs of poor health or neglect, and is able to carry out transactions
necessary for survival, he or she cannot be found to be gravely disabled
despite bizarre behavior and refusal to seek shelter. Conservatorship of
Smith (1986) 187 CA3d 903, 909–910, 232 CR 277 (bizarre or eccentric
behavior only warrants conservatorship when behavior renders individual
helpless in providing for food, clothing, or shelter).

          c. [§120.77] Only Present Condition Relevant
     In considering whether a person is “gravely disabled,” the court is
limited to a review of the person’s present condition and cannot consider
the likelihood of future deterioration. Conservatorship of Murphy (1982)
134 CA3d 15, 19, 184 CR 363. For example, medical testimony to the
effect that the conservatee is likely to stop taking his or her medicine if
released and, therefore, will become gravely disabled in the future does
not justify a finding of present grave disability under the LPS Act.
Conservatorship of Benvenuto (1986) 180 CA3d 1030, 1034, 226 CR 33.
But if the conservatee lacks insight into his or her mental illness, does not
believe there is a need for medication, and would not take the medication
on a voluntary basis, the person may indeed be considered to be gravely
disabled. Conservatorship of Walker (1989) 206 CA3d 1572, 1577, 254
CR 552. But consider the jury instruction at §120.105.
     A jury instruction allowing a jury to consider evidence of proposed
conservatee’s (1) past failure to take medication and (2) lack of insight
into his or her mental condition to reach a finding of present grave
disability has been approved on appeal. Conservatorship of Guerrero
(1999) 69 CA4th 442, 443, 81 CR2d 541. This instruction does not expand
the statutory definition of gravely disabled, but follows the decision in
Walker. 69 CA4th at 446.

          d. [§120.78] Third Party Assistance Considered
      A person is not gravely disabled for purposes of an LPS
conservatorship if that person can survive safely without involuntary
detention with the help of responsible family, friends, or others who are
both willing and able to help provide for the person’s basic personal needs
for food, clothing, or shelter. Welf & I C §5350(e)(1); Conservatorship of
Early (1983) 35 C3d 244, 254, 197 CR 539; Conservatorship of Neal
(1987) 190 CA3d 685, 689, 235 CR 577.
      Unless they specifically indicate in writing their willingness and
ability to help, family, friends, or others are not considered willing or able
to provide this help. Welf & I C §5350(e)(2). The purpose of this
120–49                           LPS Proceedings                       §120.79



provision is to avoid the need for, and the harmful effects of, requiring
family, friends, and others to state publicly, and requiring the court to find,
that no one is willing or able to help the mentally disordered person in
providing for his or her basic needs. Welf & I C §5350(e)(3). Because of
this purpose and despite the writing requirement, if the person who is
willing and able to help the proposed conservatee testifies in court to his
or her willingness and ability, the person need not give a writing to this
effect. Conservatorship of Johnson (1991) 235 CA3d 693, 699 n5, 1 CR2d
46.
     Neither the provider of a board and care home (Conservatorship of
Law (1988) 202 CA3d 1336, 1341, 249 CR 415) nor the Department of
Corrections (Conservatorship of Jones (1989) 208 CA3d 292, 256 CR
415) qualifies as a third party providing assistance to a proposed
conservatee. Moreover, even when a close relative or other person is
willing to provide a home and ensure that the potential conservatee will
receive treatment, a finding of grave disability may be proper if the
prospective caregiver would be unable to provide the kind of structured
care needed. Conservatorship of Johnson, supra, 235 CA3d at 698.

     9. [§120.79] Witnesses
      A proposed conservatee does not have a fifth amendment right to
refuse to testify. Conservatorship of Baber (1984) 153 CA3d 542, 550,
200 CR 262. The Baber court held that there is a need for the trier of fact
to assess the proposed conservatee’s relevant physical and mental
characteristics, because of the significant public interest concerns and the
significant liberty interests at stake. A proposed conservatee, however,
may not be compelled to answer questions that might incriminate him or
her in a criminal matter. 153 CA3d at 550.
      The presence of the physician or other professional who
recommended conservatorship may be waived by the proposed
conservatee on the advice of counsel. Welf & I C §5365.1. In those cases,
recommendations and records may be received in evidence by stipulation.
Welf & I C §§5276.1, 5303.1. Failure to use the waiver procedure in Welf
& I C §5365.1, however, does not create an affirmative right at trial to the
presence of a treating physician. Conservatorship of Scharles (1990) 220
CA3d 247, 254, 269 CR 398. The court in Scharles also noted that, even
in the absence of the treating physician’s testimony, grave disability must
still be established beyond a reasonable doubt, and a proposed conservatee
may subpoena the treating physician to controvert testimony at trial that
supports grave disability. 220 CA3d at 255.
§120.80                   California Judges Benchguide               120–50



     10. Jury Issues
          a. [§120.80] Selection
     Proposed conservatees are only entitled to the six peremptory
challenges available to any civil litigant (see CCP §231(c)) rather than to
the ten provided to criminal defendants. Conservatorship of Gordon
(1989) 209 CA3d 364, 368–371, 257 CR 365.

          b. [§120.81] Instructions
      The court is required to instruct that the proposed conservatee must
be found to be both gravely disabled and unwilling or unable to accept
treatment. Conservatorship of Baber (1984) 153 CA3d 542, 552, 200 CR
262. But it is error to instruct that the proposed conservatee must be able
to survive on his or her own with or without help and that he or she must
be willing to accept treatment voluntarily. Conservatorship of Walker
(1987) 196 CA3d 1082, 1093, 242 CR 289. It is also error to instruct that
the jury may find no grave disability only if the proposed conservatee can
provide for his or her own needs without assistance. Conservatorship of
Early (1983) 35 C3d 244, 254–255, 197 CR 539. The court has no sua
sponte obligation to instruct the jurors that they must find present, rather
than future, incompetence. Conservatorship of Law (1988) 202 CA3d
1336, 1342, 249 CR 415. Also, because conservatorship proceedings are
civil in nature, the court has no sua sponte duty to instruct on general
principles of relevant law, as would be the case in a criminal trial.
Conservatorship and Estate of George H. (2008) 169 CA4th 157, 162, 86
CR3d 666.
      Despite the fact that some safeguards given to criminal defendants
have been applied in conservatorship hearings, a conservatorship hearing
is civil in nature; therefore, there is no duty to give CALJIC, rather than
the corresponding BAJI, instructions. Conservatorship of McKeown
(1994) 25 CA4th 502, 506, 30 CR2d 542. The court in McKeown held
that, while former BAJI 2.40 regarding expert witness testimony is
generally correct in a conservatorship case, the statement that
uncontradicted expert testimony is “conclusive and binding” on jurors
should not be used in this context. 25 CA4th at 508. BAJI 2.40 has since
been modified to respond to concerns raised by McKeown.
      See §120.105 for sample CACI jury instructions, which should be
used instead of the older BAJI jury instructions.

          c. [§120.82] Burden of Proof/Jury Verdict
     Proof of grave disability beyond a reasonable doubt and a unanimous
jury verdict are required before a conservatorship may be established. See
Conservatorship of Roulet (1979) 23 C3d 219, 235, 152 CR 424;
120–51                           LPS Proceedings                       §120.83



Conservatorship of Margaret L. (2001) 89 CA4th 675, 679, 107 CR2d
542, overruled on other grounds in 40 C4th at 541. In fact, jury unanimity
is required on all issues relevant to establishing the conservatorship
(Conservatorship of Davis (1981) 124 CA3d 313, 329, 177 CR 369).
   JUDICIAL TIP: The jury only decides the issue of whether the
    proposed conservatee is gravely disabled. Issues of placement and
    appointment of the conservator are for the judge to decide. See
    generally Welf & I C §5354 (referring only to the court as
    deciding issues of placement and appointment).
     Jury unanimity is not required for a finding that a proposed
conservatee is not gravely disabled. Conservatorship of Rodney M. (1996)
50 CA4th 1266, 1268, 58 CR2d 513 (finding may be made by a three-
quarters majority). See §§120.74–120.78 for evidentiary considerations
relevant in making findings of grave disability.
     Jury unanimity is also not required to terminate a conservatorship—a
vote of nine of twelve jurors is sufficient. Conservatorship of Margaret L.,
supra, 89 CA4th at 679 n4, overruled on other grounds in 40 C4th at 541.

     11. [§120.83] Orders/Disposition
     If the court finds grave disability, it may appoint a conservator,
designate the amount of the bond, if any, specify the powers of the
conservator, and specify the placement. See Welf & I C §§5355 (no bond
for conservatorship of person other than official bond required of public
guardian), 5357 (general powers of conservator), 5358 (placement of
conservatee). A conservatee has a right to a hearing to allow the court to
separately determine placement, disabilities, and the conservator’s duties
and powers. Conservatorship of Christopher A. (2006) 139 CA4th 604,
612, 43 CR3d 427. A court may not accept a stipulated judgment that
waives a conservatee’s right to a court hearing on these issues without
instructing the conservatee on the consequences of the stipulation and
obtaining the express consent of the conservatee. 139 CA4th at 613.
Generally, a conservator must accommodate the desires of the
conservatee, except when doing so would violate the conservator’s
fiduciary duties to the conservatee or impose an unreasonable expense on
the conservatorship estate. Prob C §2113.
     Placement must be in a facility that is the least restrictive alternative,
taking into account the conservatee’s inability to provide for his or her
own food, clothing, or shelter because of a mental disorder. Welf & I C
§§5358(a)(1)(A), 5358(c)(1), 5008(h)(1)(A). For a conservatee who is
gravely disabled by virtue of being found incompetent under Pen C
§1370(a), the placement must achieve the dual goals of treatment and
public protection. Welf & I C §§5358(a)(1)(B), 5008(h)(1)(B); see Welf &
I C §5358(c)(2) (court must determine most appropriate placement). A
§120.83                    California Judges Benchguide                   120–52



conservatee does not forfeit legal rights or suffer legal disabilities merely
by virtue of the disability; rather, the court must determine the duties and
powers of the conservator, the disabilities imposed on the conservatee, and
the level of placement appropriate for the conservatee. Conservatorship
and Estate of George H. (2008) 169 CA4th 157, 165, 86 CR3d 666.
   JUDICIAL TIP: Judicial officers should learn as much as they
    can about the facilities in which conservatees might be placed. On
    beginning the LPS assignment, some judges will visit a number
    of the placements, including locked facilities, halfway houses,
    and board and care homes. This familiarity will help in deciding
    on the least restrictive alternative.
     The order may also give the conservator the right to require the
conservatee to receive treatment related specifically to remedying or
preventing the recurrence of the conservatee’s grave disability, or to
require the conservatee to receive routine medical treatment unrelated to
remedying or preventing the recurrence of the conservatee’s grave
disability. Welf & I C §5358(b). Except in emergency cases in which the
conservatee faces loss of life or serious bodily injury, no surgery may be
performed on the conservatee without his or her prior consent or a court
order specifically authorizing the surgery. Welf & I C §§5358(b), 5358.2.
     The court may not appoint the public guardian as conservator over
objection without determining whether there are family members who
might be willing to serve. Conservatorship of Walker (1987) 196 CA3d
1082, 1101, 242 CR 289. The appointment of a conservator is subject to
the list of priorities set forth in Prob C §1812(b), unless the
conservatorship investigator recommends otherwise. Welf & I C
§5350(b)(1). Under Prob C §1812(b), preference is to be given in the
following order: (1) to the spouse or domestic partner; (2) to an adult
child; (3) to a parent; (4) to a brother or sister; and (5) to any other eligible
person or entity. The court must appoint the public guardian as
conservator if the court finds that no other person or entity is willing and
able to serve as conservator. Welf & I C §5356.
     The fact of grave disability alone does not justify imposition of
special disabilities on the conservatee under Welf & I C §5357 (e.g.,
prohibiting voting, driving, entering into contracts, or consenting to
medical treatment). Conservatorship of Walker (1989) 206 CA3d 1572,
1578, 254 CR 552. At any time, the conservatee may petition the court for
a hearing to contest the rights denied to the conservatee or the powers
granted to the conservator. Welf & I C §5358.3. See §120.100 for a
sample order for conservatorship.
     Within ten days of the establishment of a conservatorship, unless the
court has found that treatment is not appropriate, the staff of the mental
health facility, together with the conservatee and the family, must establish
120–53                           LPS Proceedings                      §120.86



a treatment plan with the goal of eliminating the behavioral manifestations
of grave disability. Welf & I C §5352.6.
      If grave disability is not found, the person must be released.

     12. [§120.84] Continuing Jurisdiction/Change of Placement
      The court has continuing jurisdiction over the conservatorship for a
one-year period; if proceedings are commenced within that period for
reestablishment of the conservatorship, the court continues to retain
jurisdiction even though a jury trial for reestablishment did not begin until
after the end of the one-year period. Conservatorship of McKeown (1994)
25 CA4th 502, 505, 30 CR2d 542. Generally, a temporary interruption in
the chain of conservatorship will not extinguish jurisdiction. In re
Gandolfo (1984) 36 C3d 889, 896 n5, 206 CR 149.
      A conservator must notify the court of all changes of placement if the
conservatee is gravely disabled under Welf & I C §5008(h)(1)(B)
(conservatee found incompetent under Pen C §1370) (Welf & I C
§5358(d)(2)). For all other conservatees, however, notification is required
only if the placement is more restrictive. Welf & I C §5358(d)(1).
      The court may not approve a less restrictive placement for a gravely
disabled conservatee if it is shown by a preponderance of the evidence that
the placement poses a risk to public safety or the safety of the conservatee
or anyone else. Welf & I C §5358(d)(3).

     13. [§120.85] Appeal of Judgment
     The conservatorship must continue pending appeal unless execution
of the judgment is stayed by the appellate court. Welf & I C §5352.4.
     On appeal, a conservatee is entitled to counsel, including appointed
counsel, if necessary. Conservatorship of Ben C. (2007) 40 C4th 529, 542,
53 CR3d 856. The court of appeal is required to evaluate an attorney’s
qualifications for appointment and adhere to other requirements to ensure
active advocacy on appeal. Conservatorship of Ben C., supra; Cal Rules of
Ct 8.300.
     Appellate counsel, who finds no arguable issues, should inform the
court that he or she found no arguable issues to be pursued on appeal and
should file a brief setting out the applicable facts and the law; such a brief
will provide an adequate basis for the court to dismiss the appeal on its
own motion. Conservatorship of Ben C., supra.

     14. [§120.86] Termination of Conservatorship
     A conservatorship automatically terminates a year from the
appointment of the conservator, not including the period of service of a
temporary conservator. Welf & I C §5361. Sixty days before the date of
termination, the clerk of the superior court must notify each conservator
§120.87                  California Judges Benchguide                120–54



and his or her conservatee, as well as the person in charge of the facility,
of the date that the conservatorship will expire. Welf & I C §5362(a)
(containing form for notice). If there is no petition for reestablishment of
the conservatorship, the court must issue a decree terminating the
conservatorship. Welf & I C §5362(b). The decree must contain the
language specified in Welf & I C § 5368 (to the effect that the person who
has been a conservatee must not be presumed to be incompetent) and sent
by first-class mail to the conservator and conservatee. Welf & I C
§5362(b). See §120.104 for a sample form for an order terminating
conservatorship.
     The court may also terminate an LPS conservatorship if the goals of
the treatment plan have been reached and the conservatee is no longer
gravely disabled. Welf & I C §5352.6.

     15. [§120.87] Petition for Rehearing
      The conservatee may petition at any time for rehearing of his or her
status; however, once a petition for rehearing is filed, a six-month period
must elapse before another petition may be filed. Welf & I C §5364. The
conservatee is not entitled to a jury trial at a rehearing. Baber v Superior
Court (1980) 113 CA3d 955, 965, 170 CR 353. The conservatee has the
burden of proving by a preponderance of the evidence that he or she is no
longer gravely disabled. 113 CA3d at 966. The public guardian is not
required to prove that the conservatee’s situation has not changed.
Conservatorship of Everette M. (1990) 219 CA3d 1567, 1573, 269 CR
182. The conservatee is entitled to appointed counsel at the rehearing.
Conservatorship of Amanda B. (2009) 173 CA4th 1380, 1386, 93 CR3d
817.
      If a conservatee seeks an independent forensic psychiatric
examination for a rehearing, the court must not deny this request without
first determining if the conservatee is indigent and whether the
examination is needed for evidentiary purposes. Conservatorship of
Scharles (1990) 233 CA3d 1334, 1342–1343, 285 CR 325 (conservatee
had private pro bono attorney, rather than public defender). See §120.102
for a sample form for an order granting or denying a rehearing.

     16. [§120.88] Petition for Reappointment of Conservator
      A reapplication for conservatorship may be filed by the conservator
before the one-year termination date. Welf & I C §5362. The petition must
include the opinion of two physicians or qualified licensed psychologists
stating that the conservatee is still gravely disabled. Welf & I C §5361;
Conservatorship of Guerrero (1999) 69 CA4th 442, 446, 81 CR2d 541.
The conservator may petition the court for appointment of these experts.
Welf & I C §5361. Although the medical professionals need not have
120–55                           LPS Proceedings                      §120.88



personally examined the patient (see Conservatorship of Torres (1986)
180 CA3d 1159, 1162, 226 CR 142 (expert testimony may be based on
hearsay)), whether they have done so will affect the weight the opinions
should be given at the hearing. Conservatorship of Delay (1988) 199
CA3d 1031, 1036, 245 CR 216.
   JUDICIAL TIP: Judges often accord greater weight to the
    treating psychiatrist than to a mental health professional who has
    only cursorily examined the patient.
      Personal service of documents for reestablishment of a
conservatorship is not required; service by mail is sufficient.
Conservatorship of Wyatt (1987) 195 CA3d 391, 396, 240 CR 632.
      If requested, there must be a court hearing or a jury trial on the issue
of whether the conservatee is still gravely disabled and in need of
conservatorship. Welf & I C §§5350(d), 5362(a); Conservatorship of
Guerrero, supra, 69 CA4th at 446. Subject to this request for a hearing or
jury trial, the judge may accept or reject the conservator’s petition on his
or her own motion. Welf & I C §5362(b).
      To grant a petition for reappointment, there must be a current
showing of grave disability that must be proved beyond a reasonable
doubt. See Welf & I C §5361; 69 CA4th at 446; Conservatorship of
Johnson (1991) 235 CA3d 693, 696, 1 CR2d 46. It is not enough for the
court to determine there is a likelihood that a conservatee will return to
alcoholism, for example (see Conservatorship of Murphy (1982) 134
CA3d 15, 18–19, 184 CR 363), or that the evidence shows the propensity
of the conservatee to avoid taking necessary medication (see
Conservatorship of Benvenuto (1986) 180 CA3d 1030, 1034, 226 CR 33).
But propensity for not taking medication may be considered in
determining whether the conservatee continues to be gravely disabled. See
§120.19; see also §120.105.
      A conservatee who waives his or her presence and the presence of his
or her counsel at the hearing essentially admits that he or she does not
oppose reestablishment of the conservatorship. A brief and pro forma
hearing is not necessary; an ex parte review is sufficient. See
Conservatorship of Pollock (1989) 208 CA3d 1406, 1413, 257 CR 14.
Even when there is no formal hearing or jury trial, when the petition for
reappointment incorporates information regarding the conservatee’s rights
and the consequences of reappointment of the conservator, due process is
satisfied. Conservatorship of Moore (1986) 185 CA3d 718, 727–728, 229
CR 875.
      A public conservator, as the plaintiff for purposes of an LPS Act
proceeding, has discretion to voluntarily dismiss a petition to reestablish a
conservatorship under CCP §581(b)(1) before the other party seeks
affirmative relief. In re Conservatorship of Martha P. (2004) 117 CA4th
§120.89                  California Judges Benchguide               120–56



857, 869–870, 12 CR3d 142. To curtail the plaintiff’s privilege of
dismissing an action or special proceeding voluntarily, the defendant must
clearly and specifically request affirmative relief before the voluntary
dismissal is tendered as required under CCP §581(i). In re
Conservatorship of Martha P., supra. A petition for hearing filed by the
conservatee’s “common law husband” that merely requested
reestablishment of the conservatorship with a different conservator did not
present an allegation of new matter attacking reestablishment of the
conservatorship and therefore did not qualify as a specific request for
affirmative relief precluding dismissal of the petition under CCP §581(i).
117 CA4th at 870.

I. [§120.89] Writ of Habeas Corpus
      A petition for habeas corpus may be filed to gain release of the
proposed conservatee from a medical facility pending resolution of the
petition for conservatorship. See Welf & I C §5275. It is also used to
enforce rights under Welf & I C §§5325 and 5325.1, including the right to
      • Have access to visitors and a telephone;
      • Receive the services of a patient advocate;
      • Receive treatment in ways that are least restrictive of liberty;
      • Receive treatment that is aimed toward promoting independent
        functioning; and
      • Be treated with dignity, humanity, and privacy.
     Habeas relief is available to a person
     • Certified for 14 days of intensive treatment under Welf & I C
       §5250.
     • Certified for an additional 14 days as suicidal under Welf & I C
       §5260.
     • Certified for an additional 30 days of intensive treatment under
       Welf & I C §5270.10.
     • Detained under a temporary conservatorship under Welf & I C
       §5352.1.
      Welf & I C §§5275, 5353. See §120.24 for a definition of intensive
treatment.
      Habeas relief is not ordinarily available to challenge status as a
conservatee, placement, or the conservator’s powers; the hearings built
into the LPS Act will generally be adequate for resolving these questions.
In re Gandolfo (1984) 36 C3d 889, 899 n5, 206 CR 149. Habeas relief,
however, might be appropriate if the conservatee is illegally deprived of
120–57                           LPS Proceedings                       §120.91



liberty, or the statutory review mechanisms are not working properly. 36
C3d at 898.

     1. [§120.90] Initiating the Proceeding
      The procedure to be followed is for the patient or patient’s
representative to make a request for release to a staff member of the
facility in which the patient is detained. Welf & I C §5275. Under Welf &
I C §§5275 and 5276, the staff member must promptly
      • Present this writing to the patient, or to the person who is making
         the request on behalf of the patient, for signature, or for a mark
         instead of a signature;
      • Inform the patient of his or her right to counsel;
      • Inform the patient that his or her family members or other
         designated persons will be notified of the time and place of any
         court hearings, unless the patient requests that they not be notified;
      • Deliver the signed writing to the professional person in charge of
         the facility or to that person’s designee; and
      • Notify the superior court of the county in which the facility is
         located as soon as possible.
    Judicial Council form MC-265, Petition for Writ of Habeas Corpus—
LPS Act, is available for use by detained persons.

     2. [§120.91] Hearing
     Unless the court orders the patient released, the court must hold an
evidentiary hearing within two judicial days after the petition is filed. Welf
& I C §5276. Larger courts hold writ calendars every day while others
hold hearings more sporadically.
     The treatment facility has the burden of proving the legality of the
detention by a preponderance of the evidence, without the benefit of any
presumption of regularity. In re Azzarella (1989) 207 CA3d 1240, 1246–
1247, 1250, 254 CR 922. The facility must demonstrate the existence of
grave disability or danger to self or others, the fact that the person has
refused voluntary treatment, and the fact that appropriate treatment is
available in the facility. See Welf & I C §5276.
   JUDICIAL TIPS:
     • In conducting a habeas proceeding, judges should be especially
       patient and gentle. It is important not to argue with the patient or to
       dispute his or her beliefs, no matter how odd they are. Some judges
       have found that the habeas hearing can be a good forum in which
§120.92                   California Judges Benchguide                  120–58



       to encourage the patient to cooperate in following the treatment
       plan.
     • This and other LPS hearings may have a therapeutic effect; the
       proposed conservatee has an opportunity to experience the court as
       an impartial arbiter that may provide recourse from the doctor’s
       decisions.

     3. [§120.92] Disposition
     Under Welf & I C §5276, the court must order the person released if
any one of the following is true:
     • The person is not gravely disabled or a danger to self or others,
     • The person was not advised of voluntary treatment,
     • The person accepted voluntary treatment,
     • The facility is not staffed or equipped to provide treatment, or
     • The facility is not designated by the county to provide intensive
       treatment.
     See §120.101 for a sample writ of habeas corpus.

     4. [§120.93] Use of Findings
      A finding made in a habeas corpus proceeding under Welf & I C
§5276 is not admissible in evidence in any other proceeding, whether civil
or criminal, without the consent of the person who filed the habeas
petition. Welf & I C §5277.

J. Assisted Outpatient Treatment
     1. [§120.94] When Available
      In any county that provides assisted outpatient treatment services
under the Assisted Outpatient Treatment Demonstration Project Act of
2002 (“Laura’s Law”) (Welf & I C §§5345–5349.5), a court may order a
person who is the subject of a petition filed under the LPS Act to obtain
assisted outpatient treatment if the court finds, by clear and convincing
evidence, that the facts stated in the verified petition are true and establish
that all of the requisite criteria for this treatment are met, including, but
not limited to, the following (Welf & I C §5346(a)):
     • The person is at least 18 years of age.
     • The person is suffering from a mental illness as defined by Welf &
       I C §5600.3(b)(2), (3).
     • There has been a clinical determination that the person is unlikely
       to survive safely in the community without supervision.
120–59                          LPS Proceedings                       §120.95



     • The person has a history of failing to comply with treatment for his
       or her mental illness, and this mental illness has been a substantial
       factor in necessitating the person’s hospitalization at least twice in
       the last 36 months or has resulted in the person committing one or
       more acts of serious and violent behavior toward himself or herself
       or another in the last 48 months.
     • The person has been offered an opportunity to participate in a
       treatment plan by the local mental health department, but continues
       to fail to engage in treatment.
     • The person’s condition is deteriorating substantially.
     • Participation in the assisted outpatient treatment program is the
       least restrictive placement necessary to ensure the person’s
       recovery and stability.
     • The person needs this treatment to prevent a relapse or
       deterioration that is likely to result in grave disability or serious
       harm to self or others as defined in Welf & I C §5150.
     • It is likely that the person will benefit from this treatment.
     Any county that provides assisted outpatient treatment services under
the LPS Act must also offer the same services on a voluntary basis. Welf
& I C §5348(b).

     2. [§120.95] Petition
      A petition for an order authorizing assisted outpatient treatment may
be filed by the county mental health director or his or her designee, at the
request of certain specified persons (including family members of the
mentally ill person and treatment providers), and after conducting an
investigation into the appropriateness of filing the petition. Welf & I C
§5346(b)(1)–(3). The petition must be accompanied by an affidavit of a
licensed mental health treatment provider who has examined the person
who is the subject of the petition no more than 10 days before submission
of the petition, or who has attempted to do so but has been unsuccessful in
persuading the person to submit to an examination. Welf & I C
§5346(b)(5).
      The petition must be filed in the superior court in the county in which
the person who is the subject of the petition is present or is reasonably
believed to be present. Welf & I C §5346(b)(1). The petition and notice of
hearing must be personally served on the person who is the subject of the
petition. Copies must also be sent to the county office of patient rights and
to the current health care provider (if known) appointed for the person.
Welf & I C §5346(d)(1).
§120.96                   California Judges Benchguide                 120–60



     3. [§120.96] Hearing
      A hearing on the petition must be held within five days after it is
received by the court, excluding Saturdays, Sundays, and holidays. Welf
& I C §5346(d)(1). The hearing may be continued only for good cause. In
granting any continuance, the court must consider the need for further
examination by a physician or the potential need to provide outpatient
treatment expeditiously. Welf & I C §5346(d)(1).
      The hearing is limited to the facts and grounds stated in the petition,
to ensure adequate notice to the person who is the subject of the petition
and his or her counsel. Welf & I C §5346(b)(4)(B). The person has the
right to be represented by counsel at all stages of the proceedings, and the
court must appoint the public defender or other attorney to represent the
person if he or she has not retained counsel. Welf & I C §5346(c),
(d)(4)(C).
      At the hearing, the court must hear testimony, and may examine the
person in or out of court, if the person is available. Welf & I C
§5346(d)(1). The person has the right to be present at the hearing, to
present evidence, to call witnesses on his or her behalf, and to cross-
examine witnesses. Welf & I C §5346(d)(4)(E)–(H). The court may
conduct the hearing in the person’s absence if appropriate attempts to
secure his or her attendance have failed, but must set forth the factual basis
for conducting the hearing without the person’s presence. Welf & I C
§5346(d)(1).
      The court may not order assisted outpatient treatment unless an
examining licensed mental health treatment provider, who has personally
examined and reviewed the available treatment history of the person
within 10 days before the filing of the petition, testifies in person at the
hearing. Welf & I C §5346(d)(2). If the person refuses to be examined and
the court finds reasonable cause to believe that the allegations in the
petition are true, the court may order the person taken into custody and
transported to a hospital for examination by a licensed mental health
treatment provider as soon as is practicable. Welf & I C §5346(d)(3).
Detention under the order may not exceed 72 hours. Welf & I C
§5346(d)(3).

     4. [§120.97] Order
      If, after hearing all relevant evidence, the court finds that the person
does not meet the criteria for assisted outpatient treatment (see §120.94),
the court must dismiss the petition. Welf & I C §5346(d)(5)(A). If the
court finds that the person does meet the criteria for assisted outpatient
treatment and there is no appropriate and feasible less restrictive
alternative, the court may order the person to receive this treatment for an
initial period of up to six months. Welf & I C §5346(d)(5)(B). The order
120–61                          LPS Proceedings                       §120.98



must state the categories of treatment set forth in Welf & I C §5348 that
the person is to receive. Welf & I C §5346(d)(5)(B). The court may only
order treatment that has been recommended by the examining licensed
mental health treatment provider and included in a written treatment plan.
Welf & I C §5346(d)(5)(B), (e).
     If the person ordered to undergo assisted outpatient treatment was not
present at the hearing at which the order was issued, he or she may
immediately petition the court for a writ of habeas corpus, and treatment
under the order may not begin until the petition is resolved. Welf & I C
§5346(j).
     Involuntary medication is allowed only under a separate order made
under Welf & I C §§5332–5336 (see §§120.49–120.53). Welf & I C
§5348(c).

     5. [§120.98] Subsequent Proceedings
      If the person who is the subject of a treatment order refuses to
participate in the treatment, the court may order the person to meet with
the assisted outpatient treatment team designated by the director of the
treatment program. Welf & I C §5346(d)(6). The person may be subject to
a 72-hour hold if the treatment team attempts to gain the person’s
cooperation with treatment ordered by the court, but is unable to do so.
Welf & I C §5346(d)(6). Any involuntary detention beyond the 72-hour
period must be made under Welf & I C §5150. Welf & I C §5346(f). See
§120.25. If, at any time during the 72-hour period, the person is
determined not to meet the criteria of Welf & I C §5150, and does not
agree to stay in the hospital as a voluntary patient, he or she must be
released, and any subsequent involuntary detention in a hospital must be
made under that section. Welf & I C §5346(f). The person’s failure to
comply with an order for assisted outpatient treatment, by itself, is not
grounds for an involuntary civil commitment or a finding that the person is
in contempt of court. Welf & I C §5346(f).
      The director of the outpatient treatment program must file an affidavit
with the court at least every 60 days during the period of the order,
affirming that the person continues to meet the criteria for this treatment.
Welf & I C §5346(h). If the person disagrees with the director’s affidavit,
he or she has the right to a hearing on whether he or she still meets the
criteria for the ordered treatment. Welf & I C §5346(h). At the hearing, the
burden of proof is on the director. Welf & I C §5346(h).
      If the person believes he or she is being wrongfully retained in the
assisted outpatient treatment program against his or her wishes, the person
may file a petition for a writ of habeas corpus, thus requiring the director
to prove that the person continues to meet the criteria for the treatment.
Welf & I C §5346(i).
§120.99                  California Judges Benchguide                120–62



     If the director determines that the person’s condition requires further
assisted outpatient treatment, the director must apply to the court, before
the expiration of the period of the initial treatment order, for an order
authorizing continued treatment for a period not to exceed 180 days from
the date of the order. Welf & I C §5346(g). The same procedures must be
followed as are required for an initial order, and the period of any further
involuntary treatment authorized by any subsequent order may not exceed
180 days from the date of the order. Welf & I C §5346(g).

     6. [§120.99] Settlement Agreements
      Any person whom the court determines meets the criteria for assisted
outpatient treatment under Welf & I C §5346(a) (see §120.94) may
voluntarily enter into an agreement for treatment services. Welf & I C
§5347(a). After a petition for an order for assisted outpatient treatment is
filed, but before the conclusion of the hearing on the petition, the person
who is the subject of the petition, or the person’s legal counsel with the
person’s consent, may waive the right to a hearing for the purpose of
obtaining treatment under a settlement agreement, as long as an examining
licensed mental health treatment provider states that the person can
survive safely in the community. Welf & I C §5347(b)(1).
      The settlement agreement must be agreed to by all parties and may
not be for a period of more than 180 days. Welf & I C §5347(b)(1). The
agreement must be in writing, approved by the court, and include a
treatment plan developed by the community-based program that will
provide services that provide treatment in the least restrictive manner
consistent with the person’s needs. Welf & I C §5347(b)(2). Either party
may request the court to modify the treatment plan at any time. Welf & I C
§5347(b)(3). Such an agreement has the same force and effect as an order
for treatment. Welf & I C §5347(b)(5).
      The court must designate the appropriate county department to
monitor the person’s treatment under, and compliance with, the settlement
agreement. Welf & I C §5347(b)(4). If the person fails to comply with the
treatment, the designated county department must notify the counsel
designated by the county and the person’s counsel of the person’s
noncompliance. Welf & I C §5347(b)(4). At the hearing on the issue of
noncompliance, the written statement of noncompliance submitted is
prima facie evidence that a violation of the conditions of the agreement
has occurred. Welf & I C §5347(b)(6). If the person denies any of the facts
set forth in the statement, he or she has the burden of proving by a
preponderance of the evidence that the alleged facts are false. Welf & I C
§5347(b)(6).
120–63                               LPS Proceedings                  §120.100



IV. SAMPLE FORMS
A. [§120.100] Written Form: Order for Conservatorship—Court
              Trial
    The petition of [name of proposed conservatee] for appointment of
[name] as conservator of the [person and/or estate] of [name of proposed
conservatee] was regularly heard on [date], in Department ____, Judge
[name] presiding.

      [Name] appeared as attorney for Petitioner and [name] appeared as
attorney for [name of proposed conservatee] who was [present/unable to
be present] at the hearing. [The reason for [name of proposed
conservatee]’s absence was [state reasons].]

        After reviewing the petition and hearing the evidence, the court finds
that:

     1. Notices concerning the hearing [have/have not] been given as
required by law.

     2. The facts alleged in the petition [are/are not] true in that [specify
facts].

     3. [Name of proposed conservatee] [is/is not] gravely disabled as a
result of [mental disorder/chronic alcoholism].

Note: Grave disability must be proved beyond a reasonable doubt. Some
judges also make a finding, if applicable, that no suitable alternative to
conservatorship is available.
        It is hereby ordered that:

     [Name] is appointed conservator of the person [and estate] of [name
of proposed conservatee].

     Letters of conservatorship will be issued when [he/she] has taken the
oath or executed the written affirmation required by law.

                                        [or]

     The petition for appointment of [name] as conservator of the person
[and estate] of [name of proposed conservatee] is denied.

                              [When bond required]

    [Name of proposed conservator] is required to post a bond of
$_____.

                            [When no bond required]
§120.100                   California Judges Benchguide                  120–64



     No bond is required of [name of proposed conservator].

           [Add if another person is appointed conservator of estate]

    [Name] is appointed conservator of the estate of [name of proposed
conservatee].

     Letters of conservatorship will be issued when [he/she] has taken the
oath or executed the written affirmation required by law.

                             [When bond required]

     [Name of proposed conservator] is required to post a bond of $____.

                           [When no bond required]

     No bond is required of [name of proposed conservator].

     The conservator shall have the power to place the conservatee in
the [name of facility] Treatment Facility or in one of the facilities set out in
Welfare and Institutions Code section 5358(a).

     The court finds that [name of facility] is the least restrictive and most
suitable available facility. On any change of placement, the following
persons shall be notified in addition to the conservatee’s attorney and the
county patients’ rights advocate: [List names].

                              [Add if appropriate]

    The conservator of the estate shall have the following powers: [List
appropriate powers. See Prob C §2591].

     The conservatee, [name], [shall/shall not]:

     1. Possess a license to operate a motor vehicle.

     2. Enter into [contracts/transactions exceeding $_____].

     3. Have the right to vote.

     4. Have the right to refuse treatment related to the grave disability.

    5. Have the right to refuse routine medical treatment unrelated to
remedying or preventing the recurrence of the grave disability.

     6. Have the right to possess a firearm.

     This conservatorship shall automatically terminate on [date].
120–65                           LPS Proceedings                    §120.103



B. [§120.101] Written Form: Writ of Habeas Corpus
To the director of [name of LPS treatment facility]:

       The petition alleging that [the petitioner’s confinement in the above-
named facility is unlawful/the petitioner’s rights in the above-named
facility have been denied without good cause] having been considered by
this court,

     YOU ARE COMMANDED to produce the petitioner at an evidentiary
hearing to be held in this matter at the following time and place: [Specify].

    YOU ARE FURTHER COMMANDED to show cause at that hearing
why the petitioner should not be released from that confinement.

     LET THIS WRIT ISSUE.


C. [§120.102] Written Form: Order Granting/Denying Rehearing
      After consideration of the petition for rehearing as to status as
conservatee, by [name of conservatee], the court [grants/denies] the
petition [and for appointment of counsel].

                              [If granted, add]

   The new hearing is set for [date and time] in [Department/Division/
Room] ____ of this court at ________________, California.


D. [§120.103] Written Form: Notification of Impending
              Termination (Welf & I C §5362)
     The one-year conservatorship established for [name] under Welfare
and Institutions Code section _______ on [date] will terminate on [date]. If
the conservator, [name], wishes to reestablish conservatorship for
another year, he or she must petition the court by [date]. Subject to a
request for a court hearing by jury trial, the judge may, on his or her own
motion, accept or reject the conservator’s petition.

      If the conservator petitions to reestablish conservatorship, the
conservatee, the professional person in charge of the facility in which he
or she resides, the conservatee’s attorney, and, if the conservator is a
private party, the county mental health director and the county officer
providing conservatorship investigation shall be notified. If any of them
request it, there shall be a court hearing or a jury trial, whichever is
requested, on the issue of whether the conservatee is still gravely
disabled and in need of conservatorship. If the private conservator does
not petition for reappointment, the county officer providing
§120.104                 California Judges Benchguide                120–66



conservatorship investigation may recommend another conservator. Such
a petition shall be considered a petition for reappointment as conservator.

                                    Clerk of the Superior Court by

                                    ________________________________
                                    Deputy

E. [§120.104] Written Form: Order Terminating Conservatorship
              After Rehearing
     The rehearing on the status of [name], conservatee, came on
regularly for hearing on [date].

     Conservatee appeared and was accompanied by [e.g., counsel
/advocate].

                                     [or]

     Conservatee appeared by [e.g., name of counsel/advocate].

     After reviewing the petition and hearing the evidence, the court finds
that [name of conservatee] is no longer gravely disabled and that a
conservatorship is no longer required for [him/her].

                                 [Optional]

    Conservatee was at no time declared to be incompetent and no
presumption of incompetence arises from the establishment of a
conservatorship.

IT IS HEREBY ORDERED THAT:

    The conservatorship of the [person and estate/person/estate] of
[name of conservatee] is terminated.

                                     [or]

      The conservatorship of the [person and estate/person/estate] of
[name of conservatee] is terminated, subject to accounting and
distribution of the conservatorship estate.


F. [§120.105] Written Form: Jury Instructions
Note: This form reproduces several jury instructions from the Judicial
Council of California, Civil Jury Instructions (CACI) in the 4000 series for
the Lanterman-Petris-Short Act. The series in its entirety should be
120–67                          LPS Proceedings                     §120.105



reviewed before a trial on the issue of whether a respondent is gravely
disabled.

CACI 4002. “Gravely Disabled” Explained

      The term “gravely disabled” means that a person is presently unable
to provide for his or her basic needs for food, clothing, or shelter because
of [a mental disorder or impairment by chronic alcoholism]. The term
“gravely disabled” does not include mentally retarded persons by reason
of being mentally retarded alone.

       [Insert one or more of the following:] [psychosis/bizarre or eccentric
behavior/delusions/hallucinations/ [insert other]] [is/are] not enough, by
[itself/themselves], to find that [name of respondent] is gravely disabled.
[He/She] must be unable to provide for the basic needs of food, clothing,
or shelter because of [a mental disorder or impairment by chronic
alcoholism].]

              [Add next two paragraphs if the facts warrant]

      [If you find [name of respondent] will not take [his/her] prescribed
medication without supervision and that a mental disorder makes
[him/her] unable to provide for [his/her] basic needs for food, clothing, or
shelter without such medication, then you may conclude [name of
respondent] is presently gravely disabled.

      In determining whether [name of respondent] is presently gravely
disabled, you may consider evidence that [he/she] did not take prescribed
medication in the past. You may also consider evidence of [his/her] lack
of insight into [his/her] mental condition.]

     In considering whether [name of respondent] is presently gravely
disabled, you may not consider the likelihood of future deterioration or
relapse of a condition.

CACI 4004. Issues Not to Be Considered

    In determining whether [name of respondent] is gravely disabled,
you must not consider or discuss the type of treatment, care, or
supervision that may be ordered if a conservatorship is established.

CACI 4005. Obligation to Prove—Reasonable Doubt

       [Name of respondent] is presumed not to be gravely disabled.
[Name of petitioner] has the burden of proving beyond a reasonable
doubt that [name of respondent] is gravely disabled. The fact that a
petition has been filed claiming [name of respondent] is gravely disabled
is not evidence that this claim is true.
§120.105                 California Judges Benchguide               120–68



      Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that [name of respondent] is gravely disabled as a
result of [a mental disorder/impairment by chronic alcoholism]. The
evidence need not eliminate all possible doubt because everything in life
is open to some possible or imaginary doubt.

     In deciding whether [name of respondent] is gravely disabled, you
must impartially compare and consider all the evidence that was received
throughout the entire trial.

     Unless the evidence proves that [name of respondent] is gravely
disabled because of [a mental disorder/impairment by chronic alcoholism]
beyond a reasonable doubt, you must find that [he/she] is not gravely
disabled.

      Although a conservatorship is a civil proceeding, the burden of proof
is the same as in criminal trials.
                  Table of Statutes

                    CALIFORNIA

CONSTITUTION                 1026
Art I, §11                            120.49
        120.26               1026.2
                                      120.49
CIVIL CODE                   1367.1
56.103                                120.8
120.32                       1370
                                    120.20, 120.63, 120.84
CODE OF CIVIL                1370(a)
PROCEDURE                           120.83
12                           1473
       120.59                       120.26
231(c)                       2960 et seq
       120.80                       120.49
581(b)(1)
       120.88                PROBATE CODE
581(i)                       1400 et seq
       120.88                        120.10
                             1400–3925
EVIDENCE CODE                        120.6, 120.62, 120.64
1024                         1800
     120.14                          120.62
                             1800.3
GOVERNMENT CODE
                                     120.62
68152(c)(7)
                             1801(a)
      120.32
                                     120.62
HEALTH AND SAFETY            1801(e)
CODE                                 120.62
1340 et seq                  1812
       120.6                         120.62
1374.51                      1812(b)
       120.6                         120.62, 120.83
                             1822–1824
PENAL CODE                           120.64
987.8(f)                     1822(b)
       120.72                        120.64
987.8(g)(2)                  1822(f)
       120.72                        120.64


                                                        120–69
Prob C                California Judges Benchguide                120–70



1825Prob C                              5008(h)(1)(A)
       120.5, 120.73                            120.19, 120.83
1828                                    5008(h)(1)(B)
       120.70                                   120.20, 120.83–120.84
1860                                    5008(h)(2)
       120.62                                   120.19
2113                                    5008(h)(3)
       120.83                                   120.21
2250(e)                                 5008(l)
       120.64                                   120.49
2250.2                                  5008(m)
       120.65                                   120.49
2250.2(c)                               5008.2(a)
       120.65                                   120.74
2356.5                                  5008.2(b)
       120.8, 120.62                            120.74
2591                                    5012
       120.100                                  120.6
4011.6                                  5118
       120.1, 120.8, 120.10,                    120.71
       120.25, 120.44–120.45            5150
                                                120.10–120.11, 120.13–
WELFARE AND                                     120.14, 120.25–120.28,
INSTITUTIONS CODE                               120.37, 120.45, 120.49,
602                                             120.53, 120.68, 120.94,
        120.61                                  120.98
5000–5550                               5150.05
        120.1                                   120.11
5001                                    5150.05(a)
        120.6                                   120.28
5002                                    5150.05(b)
        120.8                                   120.28
5008                                    5150.05(c)
        120.18                                  120.28
5008(a)                                 5150.4
        120.23                                  120.27
5008(b)                                 5151
        120.23                                  120.27
5008(c)                                 5152
        120.24                                  120.12–120.13
5008(f)                                 5152(a)
        120.29                                  120.12
5008(h)                                 5152(b)
        120.69                                  120.12
120–71                      Table of Statutes                   Welf & I C



5152(c)Welf & I C                        5225
       120.36                                   120.33
5154(a)                                  5225–5230
       120.13                                   120.23
5154(b)                                  5226
       120.13                                   120.3, 120.34
5157                                     5226.1
       120.39                                   120.3, 120.34–120.35
5157(a)                                  5227
       120.26                                   120.3, 120.34
5157(c)                                  5228
       120.26                                   120.3, 120.34
5157(d)                                  5230
       120.26                                   120.35
5170                                     5250
       120.26, 120.45, 120.68                   120.10, 120.15, 120.36–
5172                                            120.37, 120.44–120.45,
       120.26                                   120.49, 120.53, 120.68,
5200                                            120.89
       120.12, 120.25, 120.29            5250(d)(1)–(2)
5200–5201                                       120.4, 120.42
       120.11                            5250(d)(3)
5200–5213                                       120.42
       120.23                            5251
5201                                            120.4, 120.38
       120.12, 120.29                    5252
5202                                            120.38
       120.12, 120.29                    5253
5203                                            120.4, 120.38
       120.29                            5254
5204                                            120.4, 120.37, 120.39
       120.2, 120.29                     5254.1
5205                                            120.39
       120.2, 120.29                     5255
5206                                            120.4, 120.39
       120.2, 120.30–120.31              5256
5207                                            120.4, 120.15, 120.39,
       120.2, 120.30                            120.48
5208                                     5256.1
       120.2, 120.30                            120.4, 120.40–120.41
5212                                     5256.2
       120.30                                   120.4, 120.40
5213                                     5256.3
       120.31                                   120.42
Welf & I C              California Judges Benchguide               120–72



5256.4(a)(1)–(4)                          5264(b)
       120.43                                    120.47
5256.4(a)(5)                              5270.10
       120.4, 120.40                             120.45, 120.48, 120.89
5256.4(b)                                 5270.10–5270.65
       120.40                                    120.15
5256.4(c)                                 5270.12
       120.4, 120.39                             120.48
5256.4(d)                                 5270.15
       120.40                                    120.10, 120.44, 120.48–
5256.4(e)                                        120.49
       120.4, 120.42                      5270.55(a)
5256.5                                           120.48
       120.4, 120.44                      5270.55(b)
5256.6                                           120.48
       120.4, 120.44                      5270.55(c)
5256.7                                           120.48
       120.44                             5275
5257                                             120.15, 120.26, 120.48,
       120.46                                    120.89–120.90
5257(a)                                   5275–5276
       120.45                                    120.4
5257(b)                                   5275–5278Welf & I C
       120.45                                    120.67
5258                                      5276
       120.45                                    120.15, 120.39, 120.90–
5259.3                                           120.93
       120.46                             5276.1
5259.3(a)–(b)                                    120.79
       120.46                             5277
5259.3(c)                                        120.93
       120.46                             5278
5260                                             120.13
       120.15, 120.47, 120.49,            5300
       120.89                                    120.16, 120.57–120.59
5260 et seq                               5300 et seq
       120.45                                    120.45
5261                                      5300–5309
       120.47                                    120.16
5262                                      5301
       120.15                                    120.16, 120.57
5263                                      5302
       120.47                                    120.57
120–73                   Table of Statutes             Welf & I C



5302–5303                             5328.04
        120.57                                120.32
5303                                  5330
        120.16, 120.57                        120.32
5303.1                                5330(a)
        120.79                                120.32
5304(a)                               5330(b)
        120.58                                120.32
5304(a)(1)                            5330(c)
        120.58                                120.32
5304(a)(2)                            5330(d)
        120.58                                120.32
5304(a)(3)                            5331
        120.58                                120.49
5304(b)                               5332
        120.16, 120.59                        120.49
5325                                  5332–5336
        120.6, 120.89                         120.97
5325.1                                5332(b)
        120.89                                120.50
5325.2                                5332(c)
        120.49                                120.53
5326.5                                5332(d)
        120.51                                120.49
5326.5(c)                             5332(e)
        120.55                                120.49
5326.6                                5333(c)
        120.56                                120.50
5326.7(f)                             5334(a)
        120.55                                120.50
5326.7(g)                             5334(b)–(c)
        120.55                                120.50
5327                                  5334(d)
        120.6                                 120.52
5328                                  5334(e)(1)
        120.32, 120.74                        120.54
5328(f)                               5334(e)(2)
        120.32                                120.54
5328(r)                               5334(e)(4)
        120.32                                120.54
5328.01                               5334(f)
        120.32                                120.54
5328.02                               5336
        120.32                                120.53
Welf & I C               California Judges Benchguide                120–74



5342                                       5346(j)
        120.19                                    120.97
5343                                       5347(a)
        120.19                                    120.99
5345–5349.5                                5347(b)(1)
        120.94                                    120.99
5346(a)                                    5347(b)(2)
        120.94, 120.99                            120.99
5346(b)(1)                                 5347(b)(3)
        120.95                                    120.99
5346(b)(1)–(3)                             5347(b)(4)
        120.95                                    120.99
5346(b)(4)(B)                              5347(b)(5)
        120.96                                    120.99
5346(b)(5)                                 5347(b)(6)
        120.95                                    120.99
5346(c)                                    5348
        120.96                                    120.97
5346(d)(1)                                 5348(b)
        120.95–120.96                             120.94
5346(d)(2)                                 5348(c)
        120.96                                    120.97
5346(d)(3)                                 5350
        120.96                                    120.6, 120.10, 120.45,
5346(d)(4)(C)                                     120.60, 120.62, 120.64
        120.96                             5350–5371
5346(d)(4)(E)–(H)                                 120.47
        120.96                             5350(a)
5346(d)(5)(A)                                     120.61–120.62
        120.97                             5350(b)(1)
5346(d)(5)(B)                                     120.62, 120.83
        120.97                             5350(b)(2)
5346(d)(6)                                        120.62
        120.98                             5350(c)
5346(e)                                           120.62
        120.97                             5350(d)
5346(f)                                           120.5, 120.62, 120.70,
        120.98                                    120.88
5346(g)                                    5350(e)(1)
        120.98                                    120.78
5346(h)                                    5350(e)(2)
        120.98                                    120.78
5346(i)                                    5350(e)(3)
        120.98                                    120.78
120–75                       Table of Statutes                   Welf & I C



5350(g)                                   5358(c)
       120.62                                    120.62
5350.1                                    5358(c)(1)
       120.6                                     120.83
5350.2                                    5358(c)(2)
       120.64                                    120.83
5352                                      5358(d)(1)
       120.5, 120.17, 120.62–                    120.84
       120.63, 120.65                     5358(d)(2)
5352.1                                           120.84
       120.10, 120.45, 120.69,            5358(d)(3)
       120.89                                    120.84
5352.1(a)                                 5358.2
       120.65                                    120.56, 120.83
5352.1(b)                                 5358.3
       120.69                                    120.83
5352.1(c)                                 5361
       120.65                                    120.10, 120.17, 120.19,
5352.3                                           120.62, 120.86, 120.88
       120.45, 120.68                     5362
5352.4                                           120.10, 120.17, 120.88
       120.85                             5362(a)
5352.6                                           120.86, 120.88
       120.83, 120.86                     5362(b)
5353                                             120.86, 120.88
       120.66–120.67, 120.89              5364
5354                                             120.17, 120.87
       120.75, 120.82                     5365
5355                                             120.5, 120.65, 120.70–
       120.83                                    120.72
5356                                      5365.1
       120.83                                    120.5, 120.79
5357                                      5368
       120.83                                    120.86
5358                                      5585–5585.59
       120.17, 120.62, 120.83                    120.8
5358(a)                                   5585.20
       120.100                                   120.8, 120.22
5358(a)(1)(A)                             5585.25
       120.83                                    120.22
5358(a)(1)(B)                             5585.53
       120.83                                    120.8
5358(b)                                   5585.55
       120.83                                    120.8
Welf & I C            California Judges Benchguide                  120–76



5600.3(b)(3)                            SESSION LAWS
       120.94                           Stats 2001, ch 506, §§1–2
6500–6513
       120.21                           CALIFORNIA RULES OF
6600–6609.3                             COURT
       120.32                           2.831
8102                                            120.2–120.3
       120.14                           7.10(b)
8102(c)                                         120.9
       120.14                           7.10(c)
                                                120.9
ACTS BY POPULAR NAME                    7.10(c)(3)
Assisted Outpatient Treatment                   120.32
       Demonstration Project            7.1101(b)
       Act of 2002 (“Laura’s                    120.7
       Law”)                            7.1101(c)
       120.94                                   120.7
Children’s Civil Commitment             7.1101(f)
       and Mental Health                        120.7
       Treatment Act of 1988            8.300
       120.8, 120.22                            120.85
Guardianship-Conservatorship
       Law                              JURY INSTRUCTIONS
       120.6, 120.62                    BAJI (Civil)
Knox-Keene Health Care Service          2.40 (former)
       Plan Act                                 120.81
       120.6
Lanterman-Petris-Short Act              CACI (Civil)
       120.1, 120.6, 120.8,             4002
       120.10, 120.12, 120.18–                120.105
       120.19, 120.21, 120.25,          4004
       120.62, 120.64, 120.72,                120.105
       120.77, 120.90, 120.105          4005
Mentally Disordered Offender                  120.105
       Act (MDO Act)
                                                UNITED STATES
       120.49
Sexually Violent Predators Act          CONSTITUTION
       120.32                           Amend VI
                                                120.72
                                        Art I, §9
                                                120.26
                          Table of Cases
Albertson v Superior Court         Cruze v National Psychiatric
  (2001) 25 C4th 796, 107 CR2d       Servs., Inc. (2003) 105 CA4th
  381: §120.32                       48, 129 CR2d 65: §120.13
Allen, People v (2007) 42 C4th     Culbertson v Santa Clara County
  91, 64 CR3d 124.: §120.10          (1968) 261 CA2d 274, 67 CR
Amanda B., Conservatorship of        752: §120.30
  (2009) 173 CA4th 1380, 93        David L., Conservatorship of
  CR3d 817: §120.87                  Estate of (2008) 164 CA4th
Amanda B., Conservatorship of        701, 79 CR3d 530: §120.72
  (2007) 149 CA4th 342, 56         Davis, Conservatorship of (1981)
  CR3d 901: §120.74                  124 CA3d 313, 177 CR 369:
Azzarella, In re (1989) 207 CA3d     §120.82
  1240, 254 CR 922: §120.91        Delay, Conservatorship of (1988)
Baber v Superior Court (1980)        199 CA3d 1031, 245 CR 216:
  113 CA3d 955, 170 CR 353:          §120.88
  §120.87                          Doe v Gallinot (1981) 657 F2d
Baber, Conservatorship of (1984)     1017: §120.37
  153 CA3d 542, 200 CR 262:        Duran, People v (1976) 16 C3d
  §§120.79, 120.81                   282, 127 CR2d 618: §120.73
Ben C., Conservatorship of         Early, Conservatorship of (1983)
  (2007) 40 C4th 529, 53 CR3d        35 C3d 244, 197 CR 539:
  856: §§120.10, 120.16,             §§120.78, 120.81
  120.72, 120.74, 120.85           Edward W. v Lamkins (2002) 99
Benvenuto, Conservatorship of        CA4th 516, 122 CR2d 1:
  (1986) 180 CA3d 1030, 226          §§120.6, 120.17, 120.62,
  CR 33: §§120.70, 120.77,           120.64–120.65
  120.88                           Everette M., Conservatorship of
Bias v Moynihan (9th Cir 2007)       (1990) 219 CA3d 1567, 269
  508 F3d 1212: §§120.11,            CR 182: §120.87
  120.13                           Finch (People v Superior Court)
Bones, Conservatorship of            (1988) 200 CA3d 1546, 248
  (1987) 189 CA3d 1010, 234          CR 23: §120.59
  CR 724: §120.57                  Ford v Norton (2001) 89 CA4th
Bragg v Valdez (2003) 111            974, 107 CR2d 776: §§120.6,
  CA4th 421, 3 CR3d 804:             120.10, 120.12
  §120.46                          Forsythe, Conservatorship of
Christopher A., Conservatorship      (1987) 192 CA3d 1406, 238
  of (2006) 139 CA4th 604, 43        CR 77: §120.64
  CR3d 427: §§120.70, 120.83       Gandolfo, In re (1984) 36 C3d
Coburn v Sievert (2005) 133          889, 206 CR 149: §§120.84,
  CA4th 1483, 35 CR3d 596:           120.89
  §§120.12–120.13
Conservatorship of _________.
  See name of party.
                                                                      120–77
George H.                California Judges Benchguide              120–78



George H., Conservatorship and           Kaplan v Superior Court (1989)
   Estate of (2008) 169 CA4th              216 CA3d 1354, 265 CR 408:
   157, 86 CR3d 666: §§120.81,             §120.63
   120.83                                Karriker, People v (2007) 149
Gilbert v Superior Court (1987)            CA4th 763, 57 CR3d 412:
   193 CA3d 161, 238 CR 220:               §§120.8, 120.63
   §120.32                               Keil, People v (2008) 161 CA4th
Gonzalez v Paradise Valley                 34, 73 CR3d 600: §120.14
   Hosp. (2003) 111 CA4th 735,           Kevin M., Conservatorship of
   3 CR3d 903: §120.13                     (1996) 49 CA4th 79, 56 CR2d
Gordon, Conservatorship of                 765: §§120.6, 120.70
   (1989) 209 CA3d 364, 257 CR           Keyhea v Rushen (1986) 178
   365: §120.80                            CA3d 526, 223 CR 726:
Guerrero, Conservatorship of               §120.49
   (1999) 69 CA4th 442, 81               Krall, In re (1984) 151 CA3d
   CR2d 541: §§120.19, 120.77,             792, 199 CR 91: §120.21
   120.88                                Law, Conservatorship of (1988)
Heater v Southwood Psychiatric             202 CA3d 1336, 249 CR 415:
   Ctr. (1996) 42 CA4th 1068, 49           §§120.78, 120.81
   CR2d 880: §§120.11, 120.28,           Lillian F. v Superior Court
   120.49                                  (1984) 160 CA3d 314, 206 CR
In re __________. See name of              603: §120.55
   party.                                Locks, In re (2000) 79 CA4th
Isaac O., Conservatorship of               890, 94 CR2d 495: §120.49
   (1987) 190 CA3d 50, 235 CR            Lois M., In re (1989) 214 CA3d
   133: §§120.64, 120.70                   1036, 263 CR 100: §120.67
Ivey, Conservatorship of (1986)          Manton, Conservatorship of
   186 CA3d 1559, 231 CR 376.:             (1985) 39 C3d 645, 217 CR
   §120.64                                 253: §§120.70, 120.75
Jacobs v Grossmont Hosp.                 Margaret L., Conservatorship of
   (2003) 108 CA4th 69, 133                (2001) 89 CA4th 675, 107
   CR2d 9: §120.13                         CR2d 542: §120.82
James M., Conservatorship of             Martha P., In re Conservatorship
   (1994) 30 CA4th 293, 35                 of (2004) 117 CA4th 857, 12
   CR2d 567: §120.70                       CR3d 142: §§120.62, 120.88
Joel E., Conservatorship of              McKeown, Conservatorship of
   (2005) 132 CA4th 429, 33                (1994) 25 CA4th 502, 30
   CR3d 704: §120.72                       CR2d 542: §§120.81, 120.84
Johnson, Conservatorship of              Moore, Conservatorship of
   (1991) 235 CA3d 693, 1 CR2d             (1986) 185 CA3d 718, 229 CR
   46: §§120.5, 120.78, 120.88             875: §120.88
Jones, Conservatorship of (1989)         Murphy, Conservatorship of
   208 CA3d 292, 256 CR 415:               (1982) 134 CA3d 15, 184 CR
   §120.78                                 363: §§120.77, 120.88
120–79                        Table of Cases                        Wyatt



Neal, Conservatorship of (1987)          Scharles, Conservatorship of
  190 CA3d 685, 235 CR 577:                (1990) 233 CA3d 1334, 285
  §120.78                                  CR 325: §120.87
One Ruger .22-Caliber Pistol,            Scharles, Conservatorship of
  People v (2000) 84 CA4th                 (1990) 220 CA3d 247, 269 CR
  310, 100 CR2d 780: §120.14               398: §120.79
Pamela J., Conservatorship of            Smith, Conservatorship of (1986)
  (2005) 133 CA4th 807, 35                 187 CA3d 903, 232 CR 277:
  CR3d 228: §120.55                        §120.76
Patrick H., In re (1997) 54 CA4th        Superior Court, People v (Finch)
  1346, 63 CR2d 455: §120.61               (1988) 200 CA3d 1546, 248
Pederson v Superior Court                  CR 23: §120.59
  (2003) 105 CA4th 931, 130              Susan T., Conservatorship of
  CR2d 289: §120.8                         (1994) 8 C4th 1005, 36 CR2d
People v ________. See name of             40: §120.74
  party.                                 Symington, Conservatorship of
Phillips v Seely (1974) 43 CA3d            (1989) 209 CA3d 1464, 257
  104, 117 CR 863: §120.39                 CR 850: §120.74
Pollock, Conservatorship of              Torres, Conservatorship of
  (1989) 208 CA3d 1406, 257                (1986) 180 CA3d 1159, 226
  CR 14: §§120.73, 120.88                  CR 142: §§120.74, 120.88
Qawi, In re (2004) 32 C4th 1, 7          Triplett, People v (1983) 144
  CR3d 780: §120.49                        CA3d 283, 192 CR 537:
Rand, Conservatorship of (1996)            §120.11
  49 CA4th 835, 57 CR2d 119:             Walker, Conservatorship of
  §120.72                                  (1989) 206 CA3d 1572, 254
Riese v St. Mary’s Hosp. & Med.            CR 552: §§120.77, 120.83
  Ctr. (1987) 209 CA3d 1303,             Walker, Conservatorship of
  271 CR 199: §§120.49,                    (1987) 196 CA3d 1082, 242
  120.51, 120.53, 120.55                   CR 289: §§120.19, 120.81,
Rodney M., Conservatorship of              120.83
  (1996) 50 CA4th 1266, 58               Waltz, Conservatorship of (1986)
  CR2d 513: §§120.6, 120.82                180 CA3d 722, 227 CR 436:
Roulet, Conservatorship of                 §120.55
  (1979) 23 C3d 219, 152 CR              Warrack, Conservatorship of
  424: §§120.58, 120.60,                   (1992) 11 CA4th 641, 14
  120.62, 120.82                           CR2d 99: §120.73
Ruff v Yan (2000) 85 CA4th               Wyatt, Conservatorship of (1987)
  411, 102 CR2d 157: §120.14               195 CA3d 391, 240 CR 632:
                                           §120.88

				
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